Congress exults, BJP says there'll be no let-up in its offensive against him

A special court here on Saturday dismissed the prayer of Janata Party president Subramanian Swamy for summoning the then Finance Minister, P. Chidambaram, as an accused for allegedly conspiring with the former Telecom Minister, A. Raja, in the 2G spectrum scam case.

There was no sufficient ground in Dr. Swamy's plea for seeking the prosecution of Mr. Chidambaram, though he was party to keeping the 2G spectrum prices in 2008 at the 2001 levels and dilution of equity by two companies before the rollout of services, the court ruled.

The government hailed the verdict as vindicating its stand that Mr. Chidambaram had no role in the matter and the allegations against him were political. The BJP, however, said it would continue to target the Minister and the government and await the decision of the higher courts.

Special Judge O.P. Saini said: “In the end, Mr. Chidambaram was party to only two decisions — that is, keeping the spectrum prices at [the] 2001 level and dilution of equity by the two companies. These two acts are not per se criminal [acts]. In the absence of any other incriminating act on his part, it cannot be said that he was prima facie party to the criminal conspiracy. There is no evidence on record that he was acting in pursuit of the criminal conspiracy, while being party to the two decisions. Accordingly, I do not find any sufficient ground for proceeding against Mr. Chidambaram. The plea is without any merit, and the same is dismissed.”

The court said there was no evidence on record to suggest an agreement between Mr. Chidambaram and Mr. Raja to “subvert [the] telecom policy and obtain pecuniary advantage for himself or for any other person.”

Mr. Saini observed: “There is no evidence of any substantive act being committed by him [Mr. Chidambaram]. A bit of evidence here and a bit there does not constitute prima facie evidence for showing prima facie existence of a criminal conspiracy. Anybody and everybody associated with a decision in any degree cannot be roped [in] as an accused. The role played by the decision-maker, [the] circumstances in which the decision was taken, and the intentions of the decision-maker are the relevant facts. Intention is to be inferred from the facts and circumstances of the case. One cannot be held guilty merely by association with a decision, and a decision by itself does not indicate criminality. There must be something more than mere association. Innocent and innocuous acts done in association with others do not make one a partner in crime, unless there is material to indicate otherwise, which is lacking in this case.”

The court ruled that Mr. Chidambaram agreeing with Mr. Raja not to revisit the entry fee or spectrum charge fixed in 2001 or his act of allowing dilution of equity by Swan Telecom and Unitech Wireless were “not illegal acts,” as these were not “per se illegal, nor was it prohibited at the relevant time.” However, such acts may acquire criminal colour/overtones when done with criminal intent.” (Section 120A of the Indian Penal Code defines criminal conspiracy as “when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means.”)

As for Dr. Swamy's reliance on Mr. Saini's own charges framed against Mr. Raja and other accused that dilution of equity was a “ruse to transfer UAS licences at a premium, and thereby earn undeserved profit,” the Judge said these alleged acts were accompanied by acts subverting the established telecom policy; the procedure for grant of UAS licences; and the payment and receipt of bribe by the other accused, who were now facing trial.

The special court will continue further hearing on Dr. Swamy's complaint on March 17.

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