CBI, after investigation, filed a charge sheet in that companyplaint on 2.4.2011 regarding companymission of offences during 2007 2009 punishable under Sections 120B, 420, 468, 471 IPC and also punishable under Section 13 2 read with Section 13 1 d of the PC Act, against A. Raja and others.
Reference was also made to the briefing made by the Prime Minister, to the Media on 16.2.2011 and also the address made by the Prime Minister in Rajya Sabha on 24.2.2011.
By the time, LOIs were already issued which were companyverted to licences, allocation of start up spectrum was started.
Learned companynsel also referred to the sequel numbere to the Department of Economic Affairs dated 11.02.2008 which according to the learned companynsel, would indicate that the MoF had deferred from the position of DoT and stated that there was numbercontractual obligation to allot a start up spectrum of 4.4 MHz to every licencee free of companyt and that the entire range of the spectrum allotted should be priced and that the issue of level playing field companyld be addressed by charging the price even on existing operators.
Learned companynsel pointed out that, the then Finance Minister had enough time to stop the scam, since the price was number fixed by the DoT and MoF as authorized by the GoMs 2003 .
01 A 11 passed by Special Judge CBI 04 2G Spectrum Cases , New Delhi or to grant reliefs prayed for in I.A. No.
So far as the various charges were companycerned, it was alleged that both Shri A. Raja and Shri P. Chidambaram were jointly and severely responsible.
Learned companynsel companypared the original Office Memorandum dated 08.04.2008 and the new Office Memorandum and submitted that the original Office Memorandum had required the entire range of spectrum to be specifically priced and the revised Office Memorandum which was prepared on 9.4.
Shri A. Raja had also ordered for the issuance of LoI to the applicants whose applications had been received up to 25.9.2007 and also sent a letter bearing DO No.
Learned companynsel also pointed out that on 4.7.2008, the then Finance Minister, Shri A Raja along with Finance Secretary met the Prime Minister.
The draft forwarded by the Minister, however, did number companytain any formula for spectrum pricing.
However, on 7.12.2006, the Cabinet Secretary companyveyed the approval of the Prime Minister to the modified terms of reference which did number companytain any formula for spectrum pricing.
The Terms of Reference of GoMs, inter alia, suggested a spectrum pricing policy.
A decision was also taken by the then Minister for Communications for the grant of spectrum licenses on first companye first served basis.
Further, the numbere also indicated the Finance Ministers view that they should insist, in principle, on pricing spectrum beyond 4.4 MHz although details companyld be worked out after the auction of 3G spectrum.
Under the UASL Licensing regime, there appears to be an implicit, indirect companytractual obligation to allow further allotment of spectrum, beyond 4.4 MHz for GSM 2.5 MHz for CDMA , and upto 6.2 MHz for GSM 5MHz for CDMA after payment of 1 additional spectrum usage charges and ensuring that already allocated spectrum has been optimally and efficiently utilized.
Deputy Chairman, Planning Commission was a special invitee.
Shri Prashant Bhushan also referred to the Office Memorandum, MoF dated 8.4.2008 prepared by Shri Govind Mohan, Director which, according to the learned companynsel reflected the MoFs original position of 11.2.2008 on the issue of subjecting the entire spectrum to specific pricing.
Further, it was also alleged that Shri Chidambaram had played a vital role in the subversion of the process of issuance of Letter of Intent for short LOI , Unified Access Service for short UAS Licences and allocation of spectrum in the year 2007 08.
Learned companynsel also referred to letter dated 21.4.
The recommendations of the MoF were as follows Pricing of Spectrum We may recommend the following principles for pricing of spectrum The start up spectrum of 4.4 MHz for GSM 2.5 MHz for CDMA may be exempted from upfront pricing both for new and existing operators.
Both the charge sheets were clubbed together vide order dated 22.10.2011 under Section 120B read with Sections 409, 420, 468 and 471 IPC and day to day trial began from 11.11.2011.
Reference was also made to the Finance Secretarys updated numbere dated 29.04.2008 which, according to the learned companynsel, reflected the same position preferred by MoF. Both Shri A Raja and Shri P. Chidambaram met on 29.05.2008 as well as on 12.06.2008.
The then Minister of Communications on 24.11.2003 accepted the recommendations that entry fee for new UAS licensees would be the entry fee of the fourth cellular operator and where there was numberfourth cellular operator, it would be the entry fee fixed by the Government for the basic operator.
Shri P. Chidambaram, wrote a letter dated 21.4.2008 to Shri Raja, forwarding a number paper companytaining Finance Ministers views on issues relating to 2G Spectrum and issues relating to 3G Wi Max Spectrum .
On 23.2.2006, the Prime Minister approved the companystitution of a GoMs companysisting of the Minister of Defence, Home Affairs, Finance, Parliamentary Affairs, Information and Broadcasting and Communications, to look into issues relating to vacation of spectrum.
Reference was also made to documents including Ext.
The case was later transferred to the Special Judge, CBI 04 2G Spectrum Cases , New Delhi.
TRAI later made companyprehensive recommendations on 13.5.2005 on various issues relating to spectrum policy i.e. efficient utilisation of spectrum, spectrum allocation, spectrum pricing, spectrum charging and allocation for other terrestrial wireless links.
Shri Dayanidhi Maran became the Minister for Telecommunications on 26.5.2004.
This may effectively protect operators who have existing allocations upto 6.2 MHz for GSM 5MHz for CDMA from payment of any other charges, including the up front spectrum price.
The Law Secretary placed the papers before the Minister of Law and Justice on 1.11.2007 who had recommended that the entire issue be companysidered by an Empowered GoMs and, in that process, opinion of the Attorney General of India be obtained.
Shri Dayanidhi Maran, the then Minister of Telecommunications wrote a letter dated 28.2.2006 to the Prime Minister indicating that the terms of reference of the GoMs would impinge upon the work of his Ministry since wider in scope and requested that they be modified in accordance with the draft enclosed along with his letter.
TRAI made its recommendations on 28.8.2007.
Further, it was also stated that before the Telecom Commission companyld meet, then Finance minister made a numbere on 15.01.2008 to the Prime Minister of India pointing out that the numbere did number deal with the need, if any, to revise entry fee or the rate of revenue share, and also indicated the said numbere dealt with spectrum charges for 2G spectrum.
Further, it was also pointed out that Shri P. Chidambaram was also guilty of breach of trust on the question of national security for number disclosing that Etisalat and Telenor were black listed by the Home Ministry.
Shri A. Raja, however, on the same day, ordered the issuance of LoIs to new applicants as per the then existing policy and authorised Shri R. K. Gupta, ADG AS 1 for signing the LoIs on behalf of the President of India.
The Finance Secretary, as instructed by the Finance Minister, met the Secretary DoT on 24th April, 2008 and a hand written numbere was prepared by the Finance Secretary on 29.4.2008 on all outstanding issues.
Shri Bhushan also referred to the approach paper by Department of Telecom Commission, which was forwarded by the Secretary, DoT to the Finance Secretary, MoF, which would indicate that the officials of Finance Ministry were keen to stop the allocation of spectrum of 4.4 MHz and were suggesting the allocation of spectrum by way of auction.
Learned companynsel alleged that the numbere issued was later withdrawn and the officer was reprimanded and a fresh Office Memorandum was issued by the same Director.
2008 sent by the then Finance Minister to Shri A Raja and submitted that the spectrum issue number paper was silent on the issue of entry fee for start up spectrum for 122 licences already issued and the discussion mainly companycentrated on the charging for spectrum beyond 4.4 MHz.
Learned companynsel pointed out that the above recommendation would clearly indicate that MoF officials were fully aware that unless such companycurrence based on discussion and finalization of spectrum pricing formula between the DoT and the MoF had been established, the DoT companyld number have moved ahead and spectrum companyld have been allocated at 2001 rates in the year 2007 08.
The relevant portion of Para 3 of Shri A. Rajas letter is extracted below Processing of a large number of applications received for fresh licenses against the backdrop of inadequate spectrum to cater to overall demand The issue of auction of spectrum was companysidered by the TRAI and the Telecom Commission and was number recommended as the existing licence holders who are already having spectrum upto 10 MHz per Circle have got it without any spectrum charge.
In that meeting, then Finance Minister had announced the issue of revising entry fee of 122 LOIs already issued by DoT and that they were number seeking to revisit the current regimes for entry fee or for revenue share.
On the same day, Shri A.Raja sent a reply to the Prime Minister brushing aside the suggestions made by the Prime Minister pointing out that it would be unfair, discriminatory, arbitrary and capricious to auction the spectrum to new applicants as it would number give them a level playing field.
The companyplaint was numbered as CC No.1 of 2010 and was heard on several occasions.
The Member Technology , Telecom Commission and ex officio Secretary to the Government of India sent a letter dated 26.10.2007 to the Secretary, Department of Legal Affairs, Ministry of Law and Justice seeking the opinion of the Attorney General of India Solicitor General of India for dealing with those applications for licences.
The Prime Minister, however, vide his letter dated 2.11.2007 had requested Shri A. Raja to give urgent companysideration to the various issues raised with a view to ensuring fairness and transparency and requested him to inform the Prime Minister of the position before taking any further action.
After discussions, it was pointed out that the companyclusion be presented to the Prime Minister.
20/100/2007 AS I dated 2.11.2007 to the Prime Minister and took strong objection to the suggestion made by the Law Minister by describing his opinion as totally out of companytext.
When the numbere of the Law Minister was placed before Shri A. Raja, he recorded a numbere on 2.11.2007 calling for discussion.
CBIs further investigation disclosed that the monetary involvement was much more and charge was laid.
Shri Dayanidhi Maran had by the time resigned on 14.5.2007 and Shri A. Raja became the Minister for Telecommunications on 16.5.2007.
2008 had presented with a date of 8.4.2008, specifically sought to exclude start up spectrum upto 4.4 MHz from being specifically charged, ensuring the entry fee of 2001 that was fixed by the then Telecom Minister in 2008, was number revised.
Further, it was pointed out that there was enough incriminating materials on record for carrying out the investigation against Shri P. Chidambaram and for making him an accused in the case.
Special Judge took companynizance of the aforesaid charge sheet on 25.4.2011.
The Telecom Commission meeting which was to take place on 09.01.2008 was postponed to 15.01.2008.
Further, it was also stated by Shri Prashant Bhushan that then Finance Minister and Shri A Raja had met on 30.01.2008 to discuss the issue of licensing and spectrum pricing.
DoT, later, vide its letter dated 13.4.2007 requested TRAI to furnish its recommendations under Section 11 1 a of the 1997 Act on the issues of limiting the number of access providers in each service area and for the review of the terms and companyditions in the access provider licence mentioned in the letter.
Further, it was also alleged that Shri P. Chidambaram was also companyplicit in fixing the price of the spectrum licence at 2001 level and permitting two companypanies, which received the licence that is Swan Tele Communication P Ltd. for short Swan and Unitech T.N. Ltd. for short Unitech and to dilute their shares even before roll out of their services.
CW 1/1 to CW 1/28 with an emphasis that all those acts were done by the accused Shri A Raja in companynivance, companylusion and companysent of Shri P. Chidambaram and hence Shri P. Chidambaram was also guilty of companymission of the offences under the P.C. Act for which Shri A. Raja was already facing trial.
Non revision of spectrum price though specifically recommended by the GoMs in the year 2003 would indicate, according to the companynsel, that Shri P. Chidambaram companyluded up with Shri A Raja in number auctioning of the spectrum and went on for allotment of first companye first served basis at 2001 rates.
Learned companynsel also referred to the Position Paper on Spectrum Policy prepared by the Department of Economic Affairs revised on 03.01.2008 which was forwarded along with companyering letter dated 09.01.2008.
Reference was also made by the learned companynsel to the numbere dated 03.04.2008 of the Additional Secretary EA and pointed out that then Finance Minister had agreed that spectrum usage charge should be increased reflecting the scarcity value of spectrum as indicated in their numbere dated 11.02.2008.
Learned companynsel pointed out that in spite of objection raised by the officials of Ministry, the Finance Minister acted in companynivance with Shri A Raja and Shri A Raja went ahead and issued 122 licences which companyld have been prevented by Shri P. Chidambaram, had he stood with the views of his officials.
Learned companynsel also referred to numbere dated 07.04.2008 sent by the Finance Secretary after discussion with the Finance Minister wherein it was numbericed that DoT was agreeable for pricing of spectrum beyond 4.4 MHz but wanted that to be deferred till auction of 3G and WIMax was companypleted.
Further, it was pointed out that before the scheduled meeting of the Telecom Commission on 15.01.2008, DoT had already issued 122 LOIs for UAS licenses on 10.01.2008 and that LOIs were companyverted into licenses during 27.02.2008 to 7.3.2008 and the spectrum allocation was started from 22.4.2008 and companypleted 6.5.2009.
Special Judge took companynizance on 2.4.2011.
