Dr. Swamy's reply to CBI's response & plea to probe Chidambaram: Supreme Court reserves order

New Delhi, 11 October : The Supreme Court on Monday reserved its orders on pleas seeking a Central Bureau of Investigation (CBI) probe into Home Minister P. Chidambaram’s role as the then Finance Minister in the 2G Spectrum case and the day-to-day monitoring of investigations by two independent people.

The orders were reserved by the apex court bench of Justice G.S. Singhvi and Justice A.K. Ganguly.

Petitioner Janata Party president Subramanian Swamy sought a CBI probe into the role of Chidambaram in deciding the 2G spectrum price along with the then communications minister A. Raja.

Another petitioner, Centre for Public Interest Litigation (CPIL), sought the monitoring and supervision of the CBI probe into 2G scam by two independent experts on a day-to-day basis.

The CBI said it had gone into the document submitted by the Janata Party president and there was nothing new in it, as it was a mere compilation of the earlier material in respect of the 2G case.

The document, submitted by Swamy, was a finance ministry note of March 25, 2011 to the Prime Minister's Office, giving a chronology of communications that were exchanged within the government leading to the allotment of 2G spectrum. The investigating agency also opposed the CPIL's plea for appointment of two-three people of "good reputation and experience to oversee and monitor the CBI investigation". The agency told the court that such a plea by the CPIL was based on its "lack of knowledge of the facts of the investigation and their appreciation".

Following is the text of Subramanian Swamy’s plea for a probe into Chidambaram’s role in 2G Spectrum allotment

Written Submissions on P.Chidambaram’s 2G Spectrum Scam In IA No.18 &24 of 2011 in CA No. 1066 of 2011 Supreme Court, October 10, 2011

I. Reply to CBI’s Response

1. I shall first confine myself to the response filed on September 29, 2011 by Respondent No. 2, namely the CBI.

2. In their FIR dated 29.10.09, registered under Section 154 of the Cr. P.C [Chapter XII], and in the Chargesheet filed on 3.4.11, the CBI had recorded [on p. 3 in FIR, and on p.14 & 16 in IA No.18] the offences committed were that:

(1) The licences [not LOIs] were issued at a very nominal rate based on prices fixed in the year 2001. LOI is like an engagement to marry. It is not a contract but more like a MoU. Licence is like a marriage, a contract and part of a statute.

(2) Swan and Unitech were allowed to off load their shares to Etisalat and Telenor respectively even before roll—out and by selling their shares at several times what they paid to the Government for the licences.

3. In para (x), the CBI submits the first offence was committed on 10.1.08 when the LOIs were issued, and that Mr. Chidambaram entered the picture only on or after 15.1.08. Hence he was not a party in the commission of the said offence.

4. My rebuttal is that the offence recorded in the FIR and the Charge Sheet was not committed on 10.1.08 when LOIs were issued, but only after the licences were signed and issued, which was not done before 27.02.08[see IA No.18 p].

5. LOIs can create at most a Legitimate Expectation but not any legal claim as would a licence.

6. The offence is committed when the act of crime is consummated but not when it begins to be committed. Thus, if interstate trade in pulses is banned, a lorry is intercepted with a full load before the border, no offence is committed.

7. Myrebuttal is also that even before 10.1. 08, at least as early as 30.11.07 [IA No.18, p. ], documents submitted to the Trial Court show that Chidambaram was aware of what Raja had planned to do.

8. The then FM was also made aware on 9.1.08 [IA No.18, ANNEXURE B, p. 19]. The Office Memorandum [IA No.18, ANNEXURE W, p.100, para 11] also makes clear that Chidambaram was informed on 9.1.08. What is OM?

9. The Office Memorandum [IA No.18, ANNEXURE W, p.103-04, para 17], moreover points out that even if licences had been issued, clause 5.1 could have been invoked by the then FM to modify the licence terms in the public interest.

10. If suppose there was no meeting of minds of the two Ministers, thenthe FM bound by oath of office to secure the finances of the nation, could have invoked the Transaction of Business Rules (No.7) framed for such situations.

11. This is also what the CAG Report had said Chidambaram ought to have done [Report, p.26-27]. But the CBI failed to respond.

12. In fact, the CBI did not follow the Directions of this Hon’ble Court[(2011) 1 SCC 560 at 576 para 19] on following the leads of the CAG Report [p.26-27].

13. Hence, there is no question of fait accompli presented by Raja to Chidambaram, as averred here by the CBI.

14. On the contrary there is documentation that the duo had a meeting of minds in the commission of the offences.

15. The CBI knew of documents that show Mr. Chidambaram had been apprised by officials as early as on December 17, 2007 that the 2003 Cabinet decision needed clarification on whether it was justified in fixing entry fee at 2001 level[IA No. 18, ANNEXURE p. ].

16. The October 2003 Cabinet Resolution had mandated the FM and MC&IT to jointly decide the Spectrum Licenceprice [Office Memorandum, IA No.18,ANNEXURE W, p. 97, para 6] and in pursuance of this mandate the two Ministers did meet on three occasions i.e., 30.1.08; 29.5.08, and 12.6.08 and agreed and decided on the price. This agreement was conveyed to the PM on July 4, 2008.

17. Chidambaramafter the third meeting wrote to Rajaon April 21, 2008 [IA No.18, ANNEXURE F, p. 33] to meet to“ reach some conclusions”( to finalise the Spectrum charges), before jointly presenting the conclusions to the PM.

18. These facts make clear that it was a joint decision after a meeting of minds.That is, Chidambaram had a meeting of minds with A. Raja in acts of the latter in the commission of the first offence, for which Raja has now become an accused in the CBI charge sheet.

19. For the second offence, Chidambaram had advised Raja that it was legal to “dilute” the shares [ IA No. 24, p.13]. The Swan Telecom and UnitechWireless got a huge bonanza, according to the FIR, by selling 45% and 60% respectively to two black listed firms, Etisalat and Telenor, and later submerging their identity with these firms.

20. Thereby the owners of Swan and Unitech earned 5 to 8 times what they paid the government for getting the licence. Enclosed table shows what other licencees earned similiarly.

21. Under PC Act Section 13(1)(d)(ii) & (iii), relating to offences of criminal misconduct, a money trail to Chidambaram is not necessary for prosecution. Only lack of public interest enabling pecuniary benefit to others is sufficient.

22. It is my submission therefore that especially where a prima facie case ofinexplicable truncation of the investigation takes place, this Hon’ble Court is within the parameters of the December 16, 2010 Order to intervene and hold that for completeness, Mr. Chidambaram must necessarily be interrogated.

23. It is submitted that my IAs are in CA No.1066 of 2011 on CBI monitoring arises out the SLP No. 24873 of 2010. Therefore the CBI’s FIR against A. Raja & others and charge sheets are subsequent to, and consequence of this SLP/CA and not the other way around.

24. It is my case here that the documents placed in my IA make out clearly that not only Mr. Chidambaram was not only acquainted with the facts (thus Section 161 of CrPC comes into play), but prima facie he was active jointly with Raja in the commission of the said offences.

25. he Office Memoemanating from Finance Ministry signed by a Deputy Director show [paras 11-14 of Memo] the sequence of meetings which make it clear that it was a decision solely of the then Finance Minister to go along and/or encourage Raja to commit the crime.

II. Para wise Reply

26. I shall now, with Your Lordships’ permission,rebut all the submissions para wise.

27. Para (i) is a repeat of what I said. Investigation for this?

28. Para (ii) is half-truth that can mislead. The full truth is in Para 2.49 of the OMC Report [on pages 49-50]. The FM’s Note to PM dated 15/1/08[ANNEXURE D p.28 para 6]also makes it clear that the two Ministers have to decide.

29. So does the FM’s communication to MC&IT dated April 21, 2008[ IA No.18, Annexure F p.33] make it even more clear. Hence, the CBI failed to submit the full truth.

30. Para(iii) does not need a comment.

31. Para(iv) is irrelevant.It was only for EGoM inclusion. Not insisted upon by the then Minister under Transaction of Business Rules. But Cabinet decision of 31/10/03 empowering the two Ministers on pricing remained unaffected.

32. Paras(v)—(viii) do not need a comment.

33. Para(ix) fails to disclose that the CBI had in its possession documents which show that Mr. Chidambaram had been apprised; e.g., on December 17, 2007 that the 2003 Cabinet decision needs clarification on whether it is justified in fixing entry fee at 2001 level.

34. The 25/3/11 Office Memorandum also points this out. Also, Para(ix) misses out mild censure in the CAG Report.

35. What is clear from the records is that CBI failed willfully or otherwise to have studied any of the documents after the letter of the FS of 22.11.07 to the DoT Secretary.

36. In Para (x), the CBI holds that the first offence was allegedly committed with the issue of LOIs on 10.01.2008 at the 2001 level of entry fee of Rs. 1658 crores.

37. It may be noted that in Para(x) the second line fails to mention the date of conversion of LOIs to licences since it is beyond 15.1.08.Compare with para(xi).

38. Para (xii) and (xiii) are denied as false.

III. Conclusions

39. In their counter arguments, the Learned Counsels for the CBI and Mr. Chidambaram did not challenge any of my documents.

40. The Learned Counsel for CBI has not rebutted these arguments but instead chose to make unfoundedargumentsbased on technicalities? and bland uninformed assertions.

41. The first example of unfounded technicality is: that policy decisions cannot be questioned by this Hon’ble Court. If the policy decisions are arbitrary, unreasonable, and or malafide, there is a catena of judgments of this Hon’ble Court that indeed it can be [(1994) 6 SCC 651 at 677 to 694].

42. Second example is: thatno criminality has been alleged. Under PC Act Section 13(1)(d), relating to offences of criminal misconduct, money trail to Chidambaram is not necessary for prosecution. Only public interest is necessary. That is for the CBI to investigate and the trial court to consider and not here.

43. Nor when Raja resigned following the CAG Report or when a case was registered this need for criminality came in the way. Or for Jaswant Singh and Shourie.

44. Hence there is no substance in these technicaland obscure arguments.

IV. Prayer

45. Based on the records submitted herein in this IA, the CBI investigation into the question of culpability for the offence and subsequent loss of revenue willfully caused, on the face of the records, is clearly truncated and incomplete.

46. Section 161 (1) in Chapter XII vests powers with the CBI to investigate these offences in the FIR, in particular to examine any person “supposed to be acquainted with the facts and circumstances of the case”

47. Thus, my Prayer [ IA No.18 p.7-8 ] herein is that the CBI be directed to investigate Mr. P. Chidambaram and file a status report in this Hon’ble Court.

Source : AsianTribune