New Delhi: The CBI on Monday moved a designated
special court for slapping the fresh charge of breach of trust
by public servants against former telecom minister A Raja and
two others in the 2G spectrum allocation case.
Special Public Prosecutor U U Lalit filed an application
before Special CBI Judge O P Saini, saying a case of criminal
breach of trust under Section 409 of the Indian Penal Code is
"certainly made out" against Raja, his former private
secretary R K Chandolia and former telecom secretary Siddharth
The CBI plea said besides Raja and two former officials,
all others, including DMK MP Kanimozhi and three telecom firms
should be charged under Section 409 (criminal breach) read
with 120 B (criminal conspiracy) of the IPC.
"It is submitted that accused 1, 2, and 3 (Raja, Behura
and Chandolia) were public servants having a dominion over
valuable 2G spectrum in their respective capacities as public
servants," said the CBI application.
"The said accused public servants in pursuance of
conspiracy with other accused dishonestly disposed of the
valuable 2G spectrum illegally and in violation of the
existing policies and the eligibility criterion in order to
confer wrongful gain on accused no 4 (Swan Telecom promoter
Shahid Usman Balwa), 5 (Vinod Goenka), 6 (Swan Telecom), 7 (MD
of Unitech Sanjay Chandra) and 8 (Unitech Wireless Tamil Nadu
Ltd)," the CBI told the court.
"Thus, accused Raja, Behura and Chandolia have committed
an offence punishable under Section 409 IPC and all other
accused have committed an offence punishable under Section 409
read with Section 120 B IPC. With the cognisance of this court
(they) should be charged accordingly," the application said.
The CBI, in its plea, prayed that "a case of framing of
charge under Section 409 IPC is certainly made out.
"It is humbly prayed that a charge under Section 409 IPC
be framed against accused Raja, Behura and Chandolia and
charge under Section 409 read with 120 B IPC framed against
all other accused in addition to the charges already mentioned
in the chargesheets filed before this court," the agency
Section 409 IPC carries a maximum punishment of
imprisonment for life or imprisonment for a term which may
extend upto 10 years.
The CBI, in its two chargesheets against the accused,
have booked them for the offences punishable under Section
120B, 420, 468 and 471 IPC besides various provisions of the
Prevention of Corruption Act.
The defence counsel, however, opposed the CBI`s plea
saying, "They just want to delay the proceedings of framing of
charges against the accused."
Special Public Prosecutor Lalit submitted the application
to the court for slapping fresh charges against 2G scam
accused while arguing on a Law Ministry report which said a
firm should have more than 10 per cent stakes in another for
being termed its associate, a plea taken by 2G scam accused
Reliance Telecom and Swan Telecom.
Law Secretary D R Meena, in his report to DoT, had said
the term "associate" could be determined only by applying the
"share-holding" test between telecom firms.
"It is a common mistake to confuse a mere `association`
with a definition of an `associate company`. Companies may
have common interests, common business strategies, financial
dealings, business pacts and understandings. It is common
knowledge that in the telecom sector, several companies enter
into business arrangements for technical support and
strategies like sharing of towers.
"To that extent, they certainly have an `association` but
by no means they can be termed as being `associates` of one
another on that ground. The true test, therefore, is to apply
the shareholding test," the report said.
The CBI has been alleging that Swan Telecom was an
associate firm of Reliance Telecom (RTL) created to circumvent
the then guidelines of DoT which debarred existing CDMA
players from venturing into GSM segment.
RTL and Swan Telecom, alleged beneficiaries of the scam,
have been taking the defence that they were not "associate"
firms as RTL`s stake in Swan Telecom was below 10 per cent, as
mandated under the guidelines for the Unified Access Service
Thus, the Union Law Ministry`s report has virtually
supported the two beneficiary firms` stand.