Raja Bail Order

7/31/2019 Raja Bail Order

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IN THE COURT OF 0. P . SAINI: SPL. JUDGE, CBI (04)(2GSpectrum Cases), NEW DELHI.

CCNo. 01/11CBI Vs, A. Raja and others15.05.2012Present;

ORDER

Ms . S on ia Mathur S pi. P p, S h. A . K . Singh and Sh. A.K. Rao Sr. PPs for eBl with 10 SP Vivek Priyadarshi.Accused A. Raja in judicial custody with Sh.Ramesh Gupta S r. Advocate with Sh. ManuSharma and Sh. Babanjeet Singh MewAdvocates.

This order shall d ispose of bail application dated09.05.2012 filed by accused A. Raja.2. The instant case was registered on 21.10.2009against unknow n offic ials o f Depar tment o f Te le c ommun i ca ti on s(DDT), Govt. o f In dia, unknown private persons/companies andothers for the offences punishable under sections 120-8 IPe,read with 13(2) r/w 13(1)(d) of Prevention of Corruption Act ..1988, on allegations of criminal conspiracy and criminalmisconduct, in respect of allo tment o f Letters of Intent, UnifiedAccess Services (U AS). L icences and spectrum by rh eDepartment of T elec omm un ic atio ns. F ollo win g alleg atio ns wereleveled in the FIR :-

(a ) The entry fe e for [he new pan India UAS licences in theyear 2008 was kept bv Df'P;1 rtmenr of


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Telecommunications (DOT) as R s.1658 C rores, at whichprice the Cellular Mobile Telephone Service (CMTS )lic ences w ere aw arded by DOT after auc tion in the year2001. These VAS licences, issued in 2008 were issued onfirst-come first-served basis w ithout any competitivebidding.

(b) A press release was issued by DOT on 24.9.2007, whichappeared in the newspapers on 25.9.2007, mentioningthat the new applications .for UAS licences will not beaccepted by the DOT after L 10.2007 till further orders .H owev er a pp li ca tio n s received upro 25.09.2007 o nly w ereconsidered , w hich w as also against rhe recom mendationsof Telecom Regulato ry .A uthorirv o f Ind ia (TRA I) that nocap should be p laced on (he number o f A ccess S erviceP roviders in any service area.

the DOT in a manner whic~ resulted inro wrongful gain tocertain companies. Further, there are allegations that the. .suspect offic ia ls o f D oT had selec tively leaked th einformation to s ome of the app licants regard ing the date. .of issuance o f le tter o f in tent on ] 0.01.2008. In rh e lettero f in ten t, an arb itrary cond ition w as incorpo rated r h a :w hosoever deposits [he' fees (~l:; per cond itions in Lenersof Intent, i.e. LOIs) first, would be the firsrro get license.Since som e of the applica n ts, w ho ' held [his prior


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:3:information, were ready with the amount and they wereable to deposit the fee earlier than others. Thus, favourwas allegedly shown to s ome a pp lic an ts by way o f l ea k in gthe information about the date of issuance of letter ofintent.

(d) Although, the FDl l imit was increased from 49 to 74% inDecember, 2005,. bur there was no lock-in period o rrestriction imposed on sale of equity or issuance o fadditional equity. As a result of this Mis. Swan TelecomPvt. Ltd. (A-6), which paid to D.OT Rs. 1537 Crares forUAS Licences of 13 circles, offloaded its 45% equity toMis E tisa la t o f UAE .Io r R s. 4200 Crores. Similarly, Mis.Unitech Wireless ( Group of 08 companies), which paid toDOT Rs.1658 C rores for VAS Licences orall 22 c irc le s,off loaded it s 60% equity to M /s Teleno r of Norway fo r Rs6100 Crores. These stakes were sold by the saidc ompan ie s e ve n before the roll Out of services b y them.The estim ated loss to Government by' gram o f lic en ce s tothese two companies alone comes to Rs. 7] 05 Crores, On,pro rata basis, the estimated loss for 8 1 1 I 22 VAS Licencesissued in 2008 w as more than Rs, 22000 Crores

3. A fter investigation, eBl filed its charge sheet in rheCourt on 02.04.2011 against tw elve accused persons, chargingthem under Sections 120- Bread with 420, 468 fwd 471 of fPCand 13(2) read with 13(1)(d) of PC Act and also charging theaccused w ith substantive offences under Sections 420) 468 and


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471 of IPe and 13(2) read with 13(1)(d) o f ,PC Act and asupplementary charge sheet was filed on 25.04.2011 againstfive additional accused persons for facilitating receipt andpayment of bribe of Rs. 200 crore.4. Vide order dated 22.10.2011, charges were framed

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against the accused persons under Sections 120-8 read with409, 420, 468 and 471 IP e and Section 7, or in alternativeSection 11 read with Section 12 and 13(2) read w ith 13(1)(d)of PC Act. Accused A. Raja has also been charged for substantiveoffences under these Sections.5. The case is presently at [he stage of recording o fprosecut ion evidence and as many F lS 42 witnesses, running intomore [han 1600 pages, have been recorded .. : . I have heard the arguments C It the' bar and havecarefully gone th rough the record.L It is submitted by Sh. Ramesh Gupta, learned S r.Advocate, for the applicant/ accused that all other accused,charged in the case, have been enlarged on bail by different

. Courts over a period of time. It is submirred that accused VinodG oenka, S an jay Chandra, G autam D oshi, S urender Pipara andHan Nair were enlarged on bail by the Hon'ble Supreme Courtvide o rder dated 23.1] .201 J . It is fu rther subm itted c h a tacc used S harad KUn1.1f , Kanimozhi K arunan ith i, K arim M o ran i,R ajiv A ggarw al and A sif Balwa have also been granted baiJ bythe Hon'ble Delhi IIigh Court vide order dated 28.1] .201:1. 1 t isfurther submitted that accused Shahid Usman Balwa and R. K.Chando1ia were granted bail by this Court vide orders dated


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:5:29.11.2011 and 01.12.2011: It is further submitted tha t a cc usedSidharath Behura has been granted bail by the Hon'ble SupremeCourt vide order dated 09:05.2012. It is submitted that since allother accused have been granted bail, app lican t/ ac cused A .Raja may also be gran ted the benefit o f baiJ on princ ip le o fparity, more so , in the light of bail to accused Sidharath Behura,whowas Secretary, DoT ,at the relevan t tim e.8. It is further subm itted that applicant/ accused is incustody since 02.02.2011 and the period of his detention isquite long. It is submitted that his further detention in custodywould not serve any purpose. It is further submitted thataccused is not in a position to. influen ce any witness C IS he is nolonger a Minister. It is further submitted th at a cc us ed is also notin a position to tamper with the evidence as entire evidence isdocumentary and is lying in the custody of th is Court. It isfurther submitted that accused has deep roots in the society andthere is no likelihood of his fleeing from justice. It is furthersubmitted tI12t charge s have ' already been framed andprosecution evidence is 'being recorded and as many as 41wimesses have already been recorded. It is submitted thataccused is ready and w illing to abide by any cond ition that maybe imposed upon him by this'Court.9. lt is further submitted that bail i s The rule nd jail isan exception and this prin cip le has been reiterar cd by [h eHon'ble Supreme Court in Sanjay Chandra's case reponed n sSaniay Chandra Vs. CBt 2011 XlI AD (SC) 65. It is submittedthat further detention of the accused w ill n ot serve :1ny purpose.


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My attention has been invited to the following case law:(1) Sanjay Chandra Vs. CBI,2011 XIIAD(SC) 65;(2) Sharad Kumar And Ors. Vs. CBI 2011 V AI! (CRI.) (DHC)517;(3 ) R. Vasudevan Vs. CBI , 2010 [ 1 J JC C 642:(4) Dipak Shubhashchandra Mehta Vs. C.E.I. & A n T . , 2012 [llJCC 757;(5) Suresh K alm adi Vs. e m , b ail-a pp lic atio n N o. 1692 of 201].decided by the Hon'ble Delhi High Court on 09.01.2012;(6) Sidhararh Behura Vs. CBI,Criminal Appeal No. 790 of 2012decided by the Hon'ble Supreme Court on 09.05.2012; and(7 ) Kulbhushan Prashar VE. e m , Ba il App li ca ti on No. 1353 012010, decided by the H on 'b le D elh i High Cour t on 11.0S.2012.10. The relevan t po rtion s o f case law have been read a rth e bar. It is prayed that il l th e light o f the subm issions m adeand the case law referred above, app lican t/ accused m ay beenlarged on bail.11. On the o ther hand , bail app lication has beenstrongly opposed by learned Sr. Public Prosecutor Sh. A . K.Singh on the ground that the applicant/ accused has also beencharged with th e o ffence un der S ec tio n 409 JPC, which ispunisha ble w ith life im prisonm ent. It is fu rther submit ted rhillaccused obtained a bribe o f R s. 200 crore by m isusing h isofficial position. It i s s ubm i tt ed that accused 'Sidharath Behurad id not receive any bribe and) as such , there is no paritybetween applicant/ accused A. Raja, who w as Minister ,MOC&1T, at the relevant time, and accused Sidharath Behura,


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who was Secretary; DoT. It is further submitted that accusedbecame Minister, MOC~IT, in May 2007 and immediatelythereafter started h obnob bing w ith the private players. It issubmitted that he was Minister and: as such, was incharge ofthe Ministry and was responsible for ensuring justice and fairplay in the gran t of UAS Licences, but he h im se lf su bv erte d th eprocess and granted l icences to ineligible -appl icants b ysubverting the ad min istrative process .. 'It is further submit tedthat all these licences have sincebeen cancelled ..12. It is further submitted that evidence is beingrecorded and only 41 witnesses have been recorded. It issubmitted that if the accused is enlarged Oil bail, witnesses mnyno t feel safe and m ay not depose fearlessly in the Coun. It lSfurther submitted that applicant / accused is resident of stare o fTamil Nadu and many witnesses are from that state and theymay not come forward to depose freely and fearlessly. J l issubmitted that there is every possibility that accused mayinfluence th e witnesses, who are from state 'o f Tam il Nadu andMinistry of DDT. It is further submitted rhar the issue of acompany known as D elp hi Investm ent Limited of Mauritius isstill being investigated. It is submitted that it is also beinginvestigated i f the applicant/ accused had received anotheramount o f Rs. 200 crore as bribe from another company. lr isfurther subm itted that there is no pari ry between the presentapplicant/ accused A. Raja and other accused' persons. !t issubmitted that a balance may be rnainrained between theinterest of the prosecution and personal liberty of the accused. It


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:8:.is submitted that in the instant case, in the interest of fair trial,

accused may not be enlarged on bail and the' application may bedismissed,1J. I have carefully considered the submissions made atthe bar in the l ight of m ateria l o n record .~ In Sanjay Chandra Vs. eB I (supra), while grantingbail to the accused, Hon'ble Supreme. Court observed in paras16 a nd 25 as under:

"16. This Court, time and again.has stated that baH is the rule andcommittal to jail an exception. It is alsoobserved that refusai of bail is arestriction on the personal liberW of theindividual guaranteed under Article, 21of the Constitution. In the case of Stareof Rajasthan Vs . Balchand, (] 997) 4 sec3 08 ., th is C o urt opined:

"2. The basic rule may perhaps betersely put as bail, not jail, except wherethere are circumstances suggestive offleeing from justice or thw arting thecourse of justice or creating othertroubles in the shape of repeatingoffences or intimidating witnesses andthe like, by the petitioner who seeksenlargement on bail from the Court. Wedo not intend to be exhaustive but only


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illustrative.3. It is true that the gravity of the

o ff en c e i nvo lv ed is likely to induce th epetitioner to avoid the course of justice

and must weigh with us whenconsidering th e question of jail. S o alsothe heinousness o f the c rim e. Even s o ,t he r ec o rd of the peti tioner in th is case isthat, while he has been on bailthroughout in th e trial court and he W(lSreleased after the judgm ent of the H ighC ourt, there is no thing to suggest that heh as a bu se d the trust p laced in h im by thecourt;' h is soc ial c ircum stances also areno t so unfavoura ble in the sense of hisbeing a desperate character or unsocialelem ent who is likely to betray th econfidence that the court may 'p lace inhim to ttlrn up, to take justice 8[ thehands of court. He is stared to be ayoung m an o f 27 years with a fam ily tomaintain. The circum stances and th esocial milieu do not m ilitate against thepetitioner being granted bail (H thisstage. A t th e same tim e any possibility ofthe absconsion or evasion or other abuse. .can be taken care of by a direction that


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:10:the petitioner wiJ l report himself beforethe police station at Baren once everyfonnight.

25. Coming back to the facts of thepresent case, both .the Courts haverefused the request for grant of bail ontwo grounds :- The prim ary gro und isthat offence alleged against th e ac cu se dpersons is very serious involving deeprooted planning in which, huge f inancialloss is caused to the S tate Exchequer ,the secondary' ground is .that thepossibiiiry of the accused personstempering with the witnesses. I n thepresent case, the charge is that' ofcheating and d ishonestly induc ingdelivery of property, forgery ' for. 'rhepurpose of cheating using as genu ine aforged docurnent.vThe punishmentof rheoffence is punishment fo r a term whichmay extend to seven years. It 1 S , nodoubt, true that th e nature of th e chargemay be relevant, but at the same time,the punishment 'to which the party maybe liable, if convic ted , (]I~o bears uponthe issue. Therefore" in determ in ingwhether to grant bait both the


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:11;seriousness of, the charge and theseverity of the punishment should betaken into consideration. The grant orrefusal to grant. bail lies within thediscretion of the Court. The grant ordenial is regulated, to a large extent, bythe facts and circum stances of eachparticular case. I}ut at the same time,right to bail is' not to be deni~~ me~elybecause of the sentiments of the

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community against the accused. Theprimary purposes of bail jn a cr:iminalcase are to relieve' the accused ofimprisonment. to relieve the State of theburden of keeping him, pellding the trial.and at the same time, to keep theaccused constmctivelv in the custody ofthe Court, whether before or afterconviction. to assure that he will submitto the jurisdiction of the Court an d be inattendance thereon whenever hispresence is required . This COurt I inGurcharan S ingh and Ors. Vs. Slate, AJR1978 SC 179, observed that t\;VQparamount considerarjons, \vhiJcconSidering petition for grant of bail innon-bailable offence. apart from the


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:12:seriousness' of . the offence, are thelikelihood of the accl;lsed fleeing' fromiustice and his tampering vvith theprosecution witnesses. Both of themrelate to ensure of the fa ir trial of th ec as e. T hough, this aspect is dealt by (heHigh Court in its im pugned order, in ourview , the sam e 'is no t convincing."(Underlining. by me fo r supplyingemphasis).

15 . Accused A . Raja w as arrested on 01.Q2.2011 by [h einvestigating agency and produced before this COUrt on02.02.201 L The charge sheet in the case w as filed on02.04.2011. Copies of documents were supplied to the accusedand compliance of Section 207 eIPC was complete. to thesa tisfaction of the accused on 19.07.20] 1.Arg uments on chargewere heard over a period of about two months and chargeswere ordered to be framed on 22. J 0.20]]. Thereafter,prosecution evidence is being recorded and rill dare 42witnesses, running into more than 1600 pages, have beenrecorded. I may note with satisfaction and also w ith a tinge ofregret that a reasonably good am oun t of work has been done inthe case in spite of stiff resistance' put up by some of th e Accusedat different stages of the case.16. I m ay note that all ather accused in {he case ha vealso been released on bail. The applicant," accused is in cusrodysince 02.02.2011. Considering the period of detention in rhe


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:13:light of the progress of the case, 1 am of the opinion that furtherdetention of the accused would not serve any purpose. There isneither any allegation nor material on record to sug gest that i fthe accused is enlarged on bail, he would flee from justice.17. An apprehension has been expressed by theprosecution that i f enlarged on bail, the applicant/ accused mayinfluence the witnesses or tamper with the evidence. However ,the case is going on for more than a year and no such incidenthas been brought to my notice. Moreover, this apprehension ofthe prosecution can be addressed by imposing conditions andrestrictions on the accused. Furthermore, almost entire evidencein the case is documentary in nature and the same is in thecustody of the Court.18. 1n the end, considering the progress of the trial,period of custody of the accused and the' fact that ; 1 1 1 otheraccused have been released. on bail, J am of the opinion !hmfurther detention of the accused would not serve anv oumoseand for these reasons, I am inclined to adm it the app!icnnl/accused to bail and he is accordingly, admitted ro bail on hisfurnishing personal bond i n the sum of Rs. 20 lacs with twosureties in the like amount; subject to following conditions:-(a) The apphcam/ accused shall not directly or indirectlymake an y inducem ent, rhrear or promise to anv personacquainted with the facts of the case s o as to dissuade him 10disclose such facts as may be necessary ro the Coun or to anyother authority;(b) He shall not visit Department of ' I e lecommunicar ions c m d


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state of Tamil Nadu without prior permission of this Court;(c) He shall remain present before this Court on all the datesf ix ed fo r hearing o f th e case. If he wan ts to remain a bs en t, th enhe shall take prior permission of this Cour t and in case o funavoidable c ircum stances, he shall immediately g iveintimation to this Cour t and also to th e Super in tendent , eBJ ,an d seek p erm issio n of this Court that he m ay be perm itted topresent through his Counsel, and in such an event, he w ill no !d isp ute h is identity as th e accused in the case;(d) He shall surrender his passport, if any (if not alreadysurrendered), and in case, he is , not a holder of th e same, heshall swear an affidavit; and(e ) em will be at liberty to m ake an ..:lpproprime applicationfo r m o dific atio n/ rec allin g of the order passed by this Court , i ffo r an y reason, th e petitioner violates any of the conditionsimposed by this Cou r t or cr ,emes any cond ition w hich i s no tconduc ive to th e holding of a fa ir trial.19. Appltcaton stands disposed of.Announced in open Court,today on M ay 15, 20]2. (0. P . SAINI)

Spl, Judge/ em (04) (2G Spec trum Cnses ) /ND

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