Proofs and documents that convinced the Supreme Court couldn’t satisfy the trial court!
The trial court judgment on 2G Scam delivered by the Special Judge acquitting all the accused in India’s biggest loot is flabbergasting. The 1552-page judgment just ignores the findings of the Supreme Court judgment delivered by Justice GS Singhvi and Justice AK Ganguly cancelling all the 122 telecom licences and severely indicting the then Telecom Minister A Raja. The trial court judgment delivered by Special Judge OP Saini simply ignored the entire concrete money trail data provided by CBI and ED. Perhaps this was one of the rarest cases CBI and ED provided kickback details which happened through bank transfers. Interestingly, ignoring all such solid evidences, Judge OP Saini said that these were routine business transfers.
Supreme Court’s Judgment emphasis on each violation, citing the appreciation of each evidence submitted. This landmark judgment was the outcome of the Public Interest Litigation filed Subramanian Swamy and Prashant Bhushan and the evidences submitted by them and the evidences submitted by CBI and Enforcement Directorate (ED) in sealed covers. The apex court judgment clearly says the main accused then Telecom Minister A. Raja acted in dishonest way.
“The exercise undertaken under the leadership of the Minister (A.Raja) was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of the equality.....
“The material produced before the Court shows that the Minister (Raja) wanted to favour some companies at the cost of public exchequer,” said the Judgment delivered by Supreme Court on February 2, 2012.
The apex court judgment went on against the accused Telecom Minister: “Arbitrary action of the Minister (Raja) though appears to innocuous was actually intended to benefit some of the real estate companies who did not have any experience in the dealing the telecom services.”
It is intriguing that how a trial judge’s verdict can simply say the evidences provided were not enough and sufficient. How the documents convinced the Supreme Court was not acceptable to trial court? This is not a murder case to give benefit of doubts. This is a case under Prevention of Corruption Act based on solid evidence and not to ponder on intention of the accused.
Now mysteriously the trial court judgment says there was no convincing evidence. It was interesting to note that in his own judgment dated February 4, 2012, Judge OP Saini said he has enough evidence to prosecute Raja. This was on the petition by Subramanian Swamy to prosecute then Finance Minister P Chidambaram for engaging in conspiracy with Raja in the price-fixing and approving the allotment of the licences. In that bad judgment also judge Saini gave clean chit to Chidambaram that though there are enough evidence on the criminality of Raja, Swamy failed to prove the criminality of Chidambaram! The judgment agrees that documents provided by Swamy shows that Chidambaram and Raja unitedly fixed the base price of controversial allotments in 2FG Scam, Swamy could not establish the evidence on association of Chidambaram invited criminality through evidences show Raja’s criminality.
Judge Saini wrote in his Order on Feb 2, 2012: “I may add that there is such incriminating material against other accused persons, who stand charged and facing trial.” And the same Judge now claims he was waiting for evidences. Till Feb 2012, Saini firmly believed he had got all incriminating evidences against Raja including criminality.
Was it Swamy’s job to prove Chidambaram’s criminality? It would have been fair if the judge or the apex court ordered CBI to prove Swamy’s allegation against Chidambaram. Anyway, it is a known fact that Courts won’t so easily go against top sitting Ministers including Chief Minister and Prime Minister after the landmark Allahabad High Court judgment indicted Prime Minister Indira Gandhi, which ultimately lead to imposition of Emergency. After this, there is an open secret that there is an unwritten rule for avoiding friction between Judiciary and Executive.
It is a big question how the evidences of Raja’s criminality detailed in the February 4, 2012 judgment by Judge OP Saini now not convincing when he acquitted main accused Raja in December 21, 2017. It is very sure many things have flown under bridge in these six years.
"Judge Saini wrote in his Order on Feb 2, 2012: “I may add that there is such incriminating material against other accused persons, who stand charged and facing trial.”
Shockingly at many areas the Judge praises Minister A.Raja and even termed that some proofs shows that Raja is an accommodative persons and given freedom to bureaucrats. Judge blames former Telecom Secretary DS Mathur in very unkind way and wonders how democratically elected Minister can work with such bureaucrats. The Judge justifies the deposition of whistle-blower Aseervatham Achary that he heard Raja shouting at Mathur for not toeing the line. Actually, Mathur deserves appreciation for not allowing Raja allot spectrum and licences till his retirement December 31, 2007. Within 10 days new Secretary Siddaharth Behura, who was Raja’s co-accused approved the dubious issue of allotting 122 licences.
But this yardstick was not applicable to another democratically elected Law Minister HR Bhardwaj. Judge in his judgment wonders why the Law Minister objected and suggested for Empowered Group of Ministers in deciding on spectrum allocation. The trial judge simply says Law Minister was wrong, when Supreme Court appreciated HR Bhardwaj’s decision. The trail judge also wonders why Law Secretary is always sending files to Law Minister!!!.
"Shockingly at many areas the Judge praises Minister A.Raja and even termed that some proofs shows that Raja is an accommodative persons and given freedom to bureaucrats. Judge blames former Telecom Secretary DS Mathur in very unkind way and wonders how democratically elected Minister can work with such bureaucrats."
After ignoring the Supreme Court judgment and evidences mentioned in it blatantly the trial court judgement in many areas vents anger against Investigation and Prosecution. Being a regular visitor in the 2G Court on almost all days, I have witnessed on many many occasions Judge Saini praising the Supreme Court appointed Special Public Prosecutors (SPP) UU Lalit and Anand Grover. Judge Saini agreed to add charging Raja and other accused for Breach of Public Trust under IPC 409 as per the recommendation to SPP UU Lalit during Framing of Charges. Lalit lead the majority part of Prosecution till August 2014, till he was elevated as Supreme Court Judge. The crossing of Prosecution was ended by November 2013 under Lalit. Anand Grover took charge from September 2014 and lead the Final Arguments. Many times, I have witnessed the Judge was fully agreeing and appreciating the arguments and evidences put forward by UU lalit and Anand Grover. It is intriguing to see the judgment of OP Saini, now accusing and ruing and complaining against Prosecution and Investigation. It was fun to read his observation that he waited whole day for evidences which look similar to the dialogue of the judge character in the famous sarcastic move on judicial system – ‘Jolly LLB.’
I have witnessed the appreciation of Judge OP Saini on many deposition of star witnesses like the 2G Scam whistleblower Aseervatham Achary and then TRAI Chairman Nripendra Mishra, currently Principal Secretary to Prime Minister Narendra Modi.
"It is intriguing to see the judgment of OP Saini, now accusing and ruing and complaining against Prosecution and Investigation. It was fun to read his observation that he waited whole day for evidences which look similar to the dialogue of the judge character in the famous sarcastic move on judicial system – ‘Jolly LLB.’ "
It is interesting to note in the judgment, Judge OP Saini says Nripendra Mishra proved that Raja violated TRAI Act citing the rovisions. What was proved by Nripendra Mishra? He proved during his deposition that among the 122 licenses allotted 85 belong to new companies, the shell companies of real estate companies owned by accused like Shahid Balwa, Vinod Goenka and Sanjay Chandra. As per the TRAI Act, it needs TRAI’s mandatory clearance to allow a new firm to operate in telecom sector. This big violation was the crux in the Supreme Court Judgment cancelling licenses based on the PILs of Subramanian Swamy and Prashant Bhushan. This was the major evidence cited in CAG Report and CBI’s charges. And during his deposition also then TRAI Chairman Nripendra Mishra proved it, says Judge Saini in his controversial judgment. Then how he acquitted all simply and complaining lacked evidences?
The judgment simply ignores the deposition of whistleblower Aseervatham Achary to give clean chit to Raja and Kanimozhi. Judge says as Achary had political ambitions and so can’t be taken his deposition at value. Having political ambition is a crime? How can ignore the facts provided by CBI corroborated by Achary’s deposition?
What is the basic of 2G Scam and evidence provided?
- Raja allotted telecom license in 2008 at a price fixed in 2001 by violating the Cabinet decision of October 2003 and TRAI recommendations. In 2001, there were only three Million mobile users and in 2008 mobile users number surged to 360 million. So, he made a gross loss to the exchequer and did favouritism.
- Raja preponed the last date of application from October 1, 2007 to September 25. How can you prepone? On January 10, 2008 (scam day) at 2:30 pm Telecom Department issues a controversial press release on this controversial decision.
- The press release also said that that day itself all operators have to pay the license fee ranging up to Rs.165 crore in Demand Draft between 3:30 pm to 4:30 pm!!!!! How can you make high-value Demand Drafts in an hour?
- CBI and CAG found all these Demand Drafts were made well in advance and some companies a week ago. This clearly shows that all the preferred companies were given information in advance. If this not criminal conspiracy then what is criminal conspiracy all about? Aseervatham Achary in his deposition corroborated these evidences saying who were all in touch with Raja on regular days before the scam day January 10, 2008.
- CBI and ED gave crystal clear bank transaction evidence of Rs200 crore kickback to DMK MP Kanimozhi from Swan Telecom owners benami companies in circuitous transaction. The money transferred between 2008 to 2009 were all of a sudden returned through banking channels hours after CBI summoned Raja in December 2010. Is this not an evidence of kickback, then what more proof CBI and ED can give? If this is not convincing to a Judge, what more we can say. As the laws on Contempt of Court implies strong provisions let me limit myself to say this is totally a BAD judgment.
"Raja preponed the last date of application from October 1, 2007, to September 25. How can you prepone? On January 10, 2008 (scam day) at 2:30 pm Telecom Department issues a controversial press release on this controversial decision."
What are the evidences of kickback:
- Bank transfers details of Rs.200 crore from Swan Telecom owners’ firms to DMK’s Kalagnar TV through circuitous route
- Bank transfer details of Rs.1.25 crore from Swan Telecom owners’ firm to Raja’s relatives’ company Green House promoters.
- Rs.65000/ month rental to Raja’s Private Secretary RK Chandolia’s home by Swan Telecom owners’ company.
The Judge termed all these concrete facts as routine business transfers. CBI and ED also took statement of Raja’s aide Sadhik Batch who admitted that full load of money bags were transported in a Tavera Car from Maharashtra to Chennai. Once when Sadhik Batcha counted the bags, he found two bags were missing and he beaten driver Krishnamoorthy. The Driver was put in illegal police custody and later they found that Diver after some months started travel agency by buying four vehicles. Weeks after this statement Sadhik Batcha was found dead in March 16, 2011. CBI produced Driver Krishnamoorthy to depose in court as witness. He was crying and telling judge, his life would be in danger and he can’t tell anything more that he said in the statement. The Judgment was totally insensitive to this stunning incident.
Government, CBI, Enforcement Directorate and Chief Prosecutor Anand Grover should immediately challenge this bad in law judgment by filing appeal in Delhi High Court. There should be a well-coordinated strategy in filing appeal to bring justice in this grand loot 2G Scam. We have seen the frauds committed by then tainted CBI Director Ranjit Sinha in mid-2014 and he was stripped by Supreme Court from meddling in 2G Scam probe and now he is facing investigation in trying to sabotage Coal Scam. Most of the accused were caught for regular night visiting at his home.
There are many such hurdles faced by Investigators. ED’s Investigating Officer Rajeshwar Singh is still facing all kind of hardships created by the corrupt politicians and corporates. Many times, Supreme Court has warned the Government on this. Recently also attempts were to shunt him out from ED as soon as after he attached Karti Chidambaram’s bank accounts in connection with Aircel-Maxis scam. We have seen the shunting of CBI Joint Director Ashok Tiwari to Himachal Road Transport Corporation for summoning Chidambaram in December 2014. It is high time for Prime Minister Narendra Modi to tighten and fix the Investigation and Prosecution in high profile corruption cases where all sort of unholy nexus working including judicial fixing. Niira Radia tapes remind us how then judgments were written by someone and transferring to certain judges in pen drives. These murky things have to end and it is the responsibility of the Modi led government which came to power on the promises in fight against corruption. At the end of the passing of the buck stops at Prime Minister Narendra Modi.
This trial court judgment is black chapter in the history of the judgments in the judiciary. This judgment shows how crony capitalism and corrupt lobbies survives and escapes. There are many factual errors in the trial court’s judgment, apart from many portions which are simply bad at law.
Fiat justitia ruat caelum: This famous Latin legal phrase means “Let justice be done though the heavens fall.” Let us be optimistic that higher forums of Indian judiciary will do justice in the bad judgment on the 2G trial court.
(The writer works with ‘The Pioneer’ daily’s New Delhi Bureau)
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