The following are the concluding paragraphs of the February 4 order by Special Judge/CBI O.P. Saini on Janata Party president Subramanian Swamy's plea for summoning Union Home Minister P. Chidambaram as an accused in the 2G spectrum case:

64. The crucial questions are:

(i) Whether entry fee for the UAS Licences and the price of spectrum was jointly determined by Mr. A. Raja and Mr. P. Chidambaram?

(ii) Whether they have deliberately fixed a low entry fee, discovered in 2001 auction, for spectrum licences?

(iii) Whether Mr. P. Chidambaram deliberately allowed dilution of equity by the two companies, that is, Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited?

(iv) If so, whether these facts prima facie show criminal culpability of Mr. P. Chidambaram also alongwith Mr. A. Raja?

(v) Whether there is any material on record to show criminal culpability of Mr. P. Chidambaram?

65. In a case of criminal conspiracy, the Court has to see whether two persons are independently pursuing the same end or are acting together in pursuit of an unlawful act. One may be acting innocently and [the] other may be actuated by criminal intention. Innocuous, inadvertent or innocent acts do not make one party to the conspiracy.

66. As per Cabinet note dated 31.10.2003, the decision regarding spectrum pricing was to be taken by Finance Minister and MOC&IT and after this decision was taken, Mr. P. Chidambaram agreed that it would be the price as discovered in the year 2001 and also told Mr. A. Raja that there is no need to revisit the same. This decision was subsequently conveyed to the Hon'ble Prime Minister also. To that extent, there is material on record.

67. However, there is no material on record to show that Mr. P. Chidambaram was acting malafide in fixing the price of spectrum at the 2001 level or in permitting dilution of equity by the two companies. These two acts are not per se illegal and there is no further material on record to show any other incriminating act on the part of Mr. P. Chidambaram. A decision taken by a public servant does not become criminal for the simple reason that it has caused loss to the public exchequer or resulted in pecuniary advantage to others. Merely attending meetings and taking decisions therein is not a criminal act. It must have the taint of use of corrupt or illegal means or abuse of his official position by public servant for obtaining pecuniary advantage for himself or for any other person or obtaining of pecuniary advantage by him without any public interest. There is no material on record to suggest that Mr. Chidambaram was acting with such corrupt or illegal motives or was in abuse of his official position, while consenting to the two decisions. There is no evidence that he obtained any pecuniary advantage without any public interest. I may add that there is such incriminating material against other accused persons, who stand charged and are facing trial.

68. There is no evidence on record to suggest that there was an agreement between him and Mr. A. Raja to subvert telecom policy and obtain pecuniary advantage for himself or for any other person. There is no evidence of any substantive act being committed by him. 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, circumstances in which the decision was taken and the intention 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.

69. In the end, Mr. P. Chidambaram was party to only two decisions, that is, keeping the spectrum prices at 2001 level and dilution of equity by the two companies. These two acts are not per se criminal. 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 to the criminal conspiracy, while being party to the two decisions regarding non-revision of the spectrum pricing and dilution of equity by the two companies.

70. Accordingly, I do not find any sufficient ground for proceeding against Mr. P. Chidambaram. The plea is without any merit and the same is dismissed.

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