Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Del) 478

IN THE HIGH COURT OF DELHI AT NEW DELHI
Dinesh Kumar Sharma, J.
Central Bureau Of Investigation - Appellant
Versus
A. Raja & Ors. - Respondents
CRL.L.P. No. 185 of 2018, CRL.M.A. No. 14255 of 2023, CRL.M.A. No. 14256 of 2023, CRL.M.A. No. 4631 of 2024, CRL.M.A. No. 4632 of 2024
Decided On : 22-03-2024

Advocates appeared:
Mr. Sanjay Jain, Sr. Advocate, (Sr. Special Public Prosecutor) with Mr. Neeraj Jain, Mr. Ripu Daman Bhardwaj & Mr. Rishi Raj Sharma (Special Public Prosecutors), Mr. Anupam Mishra, Ms. Noor Rampal, Mr. Yuvraj Sharma, Mr. Nishank Tripathi, Ms. Harshita Sukhija, Ms. Palak Jain, Ms. Shreeja Rawat, Mr.Gaurav Kumar Arya, Advocates, with Mr. Manoj Kumar, DSP-CBI., for the Petitioner; Mr. Manu Sharma, Mr. Balaji Subramanian, Mr. Karl Rustomkhan, Mr. Kartikey Masta, Mr. Gyanendra Kumar, Advocates, for R-1 & 16.; Mr. Siddharth Luthra, Senior. Advocate, with Mr. Kartikeye Dang, Mr. Sahir Seth, Mr. Arjun Varma, Mr. Aashul Agarwal, Mr. Tusharjeet Singh, Advocates, for R-2.; Mr. Mukul Rohtagi, Sr. Advocate, with Mr. Vijay Aggarwal, Mr. Shivek Trehan, Ms. Rishika Goyal, Mr. Hardik Sharma Mr. Mukul Malik, Mr. Pankush Goyal, Ms. Barkha Rastogi, Mr. Kshitiz Garg, Mr. Puneet Dhawan, Advocates, for R-3 to 5, 13 to 15., Mr. Anshul Sehgal, Mr. Divyanshu Jain, Advocates, for R-6., Ms. Rebecca John Sr. Advocate, with Ms. Tarannum Cheema, Mr. Akash Singh, Mr. Akshay N., Advocates, for R-7., Mr. D. P. Singh, Mr. Vikash Kukreti, Mr. Manu Mishra, Ms. Shreya Dutt, Mr. Imaan Khera, Advocates, for R-8., Mr. Sidharth Aggarwal Sr. Advocate, , with Mohit Kr. Auluck, Mr. Vivek Nagar, Advocates, for R-9 & 11. Mr. Hariharan, Sr. Advocate, with Mohit Kr. Auluck, Mr. Vivek Nagar, Advocates, for R-10, Ms. Manali Singhal, Mr. Santosh Sachin, Mr. Deepak Singh Rawat, Advocates, for R-12., Ms. Rebecca John Sr. Advocate, , Dr. Joseph Aristotle, Sr. Advocate, with Ms. Tarannum Cheema, Ms. Priya Aristotle, Mr. Ashutosh Singh Rana, Mr. Arun Pandiyan, Mr. Akshay N., Mr. Akash S., Advocates, for R-17., for the Respondent.

The court emphasized that mere acquaintance does not establish conspiracy; evidence must demonstrate active participation in wrongdoing, and the prosecution must establish a prima facie case for leave to appeal.

Headnote:(A) Code of Criminal Procedure, 1973 - Sections 378(2), 386, 482 - Prevention of Corruption Act, 1988 - Sections 7, 11, 12, 13(2), 13(1)(d) - Leave to appeal against acquittal - Allegations of criminal conspiracy and misconduct in telecom licensing - CBI challenged acquittal of accused in a case involving alleged corruption and manipulation of telecom licenses, resulting in significant financial loss to the government. (Paras 1-7, 218-270)

(B) Criminal Conspiracy - Definition and implications - The court emphasized that mere acquaintance or familiarity does not establish a conspiracy; evidence must demonstrate active participation in the alleged wrongdoing. (Paras 204-210)

(C) First Come First Serve Policy - The court noted that changes to the policy regarding license issuance were made without proper justification, impacting the fairness of the process. (Paras 915-923)

(D) Economic Offences - The court recognized the need for a different approach in economic offences, emphasizing the importance of thorough scrutiny in such cases. (Paras 240-250) (E) Burden of Proof - The court reiterated that the prosecution must establish a prima facie case for leave to appeal, and the presumption of innocence strengthens with an acquittal. (Paras 228-230) (F)

Result: Leave to appeal granted.

JUDGMENT

Dinesh Kumar Sharma, J:

INDEX

Sr No.

Content

Brief Facts

II.

Submissions of Petitioner/Appellant

III.

Submissions of Respondents

IV.

Rejoinder Submissions

Analysis & Findings

1. The present petition has been filed seeking leave to appeal under section 378(2) read with 386 read with 482 of the Code of Criminal Procedure, 1973[herein referred to as Cr.P.C.] against the order dated 21.12.2017 passed by Ld Special Judge CBI Patiala House Court in CC NO. 1/11 (CBI Vs A.Raja & Ors.).

I.I. Brief Facts

2. The briefly stated facts are that a Case bearing no. RC.DAL2009.A.0045 was registered under Section 120-B read with section 420/409/468/471/193 of IPC read with section 7 or in the alternative Section 11/12 and 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988. The instant case was registered on 21.10.2009 against unknown officials of the Department of Telecommunications (DoT), Government of India, unknown private persons/companies, and others for the offences punishable under various provisions alleging criminal conspiracy and criminal misconduct, in respect of allotment of Letters of Intent (LOI), Unified Access Service (UAS) Licences and spectrum by the Department of Telecommunication.

3. The allegation in brief as levelled in FIR are as under:

(a) The entry fee for the new pan India UAS licences in the year 2008 was kept by Department of Telecommunications (DOT) as Rs.1658 Crore, at which price the Cellular Mobile Telephone Service (CMTS) licences were awarded by DOT after auction in the year 2001. These UAS licences, issued in 2008 were issued on first-come first-serve basis without any competitive bidding.

(b) A press release was issued by DoT on 24.9.2007, which appeared in the newspapers on 25.9.2007, mentioning that the new applications for UAS licences will not be accepted by the DoT after 1.10.2007 till further orders. However applications received up to 25.09.2007 only were considered, which was also against the recommendations of Telecom Regulatory Authority of India (TRAI) that no cap should be placed on the number of Access Service Providers in any service area.

(c) Even First-Come First-Serve policy was implemented by the DoT in a manner which resulted into wrongful gain to certain companies. Further, there are allegations that the suspect officials of DoT had selectively leaked the information to some of the applicants regarding the date of issuance of letter of intent on 10.01.2008. In the letter of intent, an arbitrary condition was incorporated that whosoever deposits the fees (as per conditions in Letters of Intent, i.e. LoIs) first, would be the first to get license. Since some of the applicants, who had this prior information, were ready with the amount and they were able to deposit the fee earlier than others. Thus, the favour was allegedly shown to some applicants by way of leaking the information about the date of issuance of the letter of intent.

(d) Although, the FDI limit was increased from 49% to 74% in December, 2005, but there was no lock-in period or restriction imposed on the sale of equity or issuance of additional equity. As a result of this M/s. Swan Telecom Pvt. Ltd. (A-6), which paid to DoT Rs. 1537 Crore for UAS Licences of 13 circles, offloaded its 45% equity to M/s Etisalat of UAE for Rs. 4200 Crore. Similarly, M/s. Unitech Wireless (Group of 08 companies), which paid to DOT Rs.1658 Crore for UAS Licences of all 22 circles, offloaded its 60% equity to M/s Telenor of Norway for Rs. 6100 Crore. These stakes were sold by the said companies even before the roll out of services by them. The estimated loss to Government by grant of licences to these two companies alone comes to Rs. 7105 Crore. On pro rata basis, the estimated loss for all 122 UAS Licences issued in 2008 was more than Rs. 22000 Crore.

4. After investigation, CBI filed charge sheet in court on 02.04.2011 against twelve accused persons, that is, A-1 to A-12. The supplementary charge sheet was filed on 25.04.2011 aga