They were “trustees” of spectrum, but disposed of it in violation of law
Slapping the charge of criminal breach of trust by public servant (Section 409 of the Indian Penal Code) on the former Telecom Minister, A. Raja, and the former Telecom Secretary, Siddhartha Behura, besides charging the other accused including DMK MP Kanimozhi with criminal conspiracy to commit breach of trust (Sections 120B read with 409 IPC), the special CBI court here has said that Mr. Raja and Mr. Behura were the respective political and administrative heads of the Department of Telecom (DoT) who, by way of exercising “valuable statutory right in respect of a scarce natural resource of great economic value,” were “trustees” of spectrum.
Special Judge O.P. Saini said: “I am prima facie satisfied that accused A. Raja and Siddhartha Behura, being public servants, that is, political and administrative heads of the DoT respectively, were having dominion over valuable 2G spectrum, which was disposed of by them in violation of law and which resulted into unlawful gain to the accused companies and receipt of a bribe of Rs. 200 crore by accused A. Raja, which was received by Kalaignar TV on his behalf and accordingly, charge of conspiracy to commit criminal breach of trust by public servant is also made out against all accused and substantive offence of criminal breach of trust by public servant is made out only against accused A. Raja and Siddhartha Behura.”
[On September 26, the CBI had brought the additional charge of criminal breach of trust against Mr. Raja, Mr. Behura, and Mr. Raja's former Private Secretary R. K. Chandolia, and conspiracy to commit criminal breach of trust against the 14 other accused, throwing the accused into a tizzy and raising sharp protests from defence counsel. Section 409 IPC carries a maximum punishment of life imprisonment compared to the other charges the CBI had earlier pressed, for which maximum punishment was seven years.]
Observing that “there are allegations and evidence on record that almost every step in the process [issuance of LoI, signing UAS licences, 2G spectrum allocation] was completed under their [Raja and Behura's] signatures and that too, hurriedly,” accompanied by “allegations of payment and receipt of bribe,” the judge said: “The grant of UAS licence and allocation of spectrum is done as per a well-regulated legal framework and spectrum is a great natural asset of enormous scientific, technological and economic value and when this regime is handed over to a Minister/public servant and he exercises the powers in relation to it, its certainly creates a trust and any breach of the regime, which is regulated by domestic laws and international conventions, that too for favouring certain companies in order to obtain illegal consideration, certainly amounts to criminal breach of trust by the Minister/public servant concerned.” The court also referred to the “quantum of loss” suffered by the exchequer, as alleged by the CBI.
Rejecting the defence contention that the charges of “cheating” and “criminal breach of trust” were antithesis and could not stand together, Mr. Saini, drawing the example of Mr. Raja's alleged act of illegally amending the note signed off by the former Solicitor-General, G.E. Vahanvati, and then using this note to manipulate the previously laid-down process, wrote in his order: “Accused A. Raja had dominion over the spectrum. He had the power as well as duty to allocate the same ... He was a trustee in that sense. He not only failed to discharge that trust as per law but also induced DoT to do it in a wrongful manner by misrepresenting to them that whatever he was doing had the legal backing of top law officer of the country. The moment the accused entertained a wrongful intention of doing something, which was contrary to trust reposed in him, and took active steps in violating the trust, he became guilty of criminal breach of trust and the moment he induced DoT to proceed in a manner opposed to the laid down procedure, he cheated DoT also at the time of committing criminal breach of trust.”