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The Instant Proceedings : Factual Narration The CBI registered another RC being RC DAI 2011 A 0024 on 17th November, 2011 with regard to alleged irregularities in grant of additional spectrum in the year 2002 during the tenure of late Shri Pramod Mahajan as Minister of Communications. In this RC, apart from Shri Pramod Mahajan, others who were named were Mr. Shyamal Ghosh, the then Secretary (Telecom), Mr. J.R. Gupta, the then Deputy Director General (VAS) and three Cellular Companies viz. M/s Bharti Cellular Limited, M/s Hutchison Max Telecom (P) Limited and M/s Sterling Cellular Limited. After registering the said RC, the CBI started investigation into the allegations contained therein. As already pointed out above, since the matter was being monitored by this Court, progress reports of investigation were filed from time to time in sealed envelopes. On 29th November, 2012, after perusing certain documents presented in a sealed cover, this Court directed the CBI to take action in accordance with the views expressed by it on the issue of prosecution of public servants and the companies in connection with the said case. The precise nature of this order can be seen from the actual language thereof which is reproduced hereunder:

As pointed above, on the basis of the outcome of the aforesaid inquiry, a regular case was registered on 17.11.2011 for the offences punishable under Sections 120-B IPC r/w 13 (2) and 13 (1)(d) of the Prevention of Corruption Act, 1988 (for short, 'PC Act'). It was against Mr. Shyamal Ghosh, Mr. J.R. Gupta and the three Cellular Companies, names whereof have already been mentioned above. The main allegation is that additional spectrum beyond 6.2 MHz upto 10 MHz (paired) was approved at an additional revenue share at the rate of 1% only, meaning thereby the said additional revenue should have been at a higher rate. As per the investigation, Cellular Operators Association of India (COAI) had made a request to DoT, in the year 2001, for allocating additional spectrum particularly in Delhi and Mumbai service areas. On this, Technical Committee was constituted which gave its report on 21.11.2001 recommending therein that 6.2 MHz spectrum was sufficient for a subscriber based out of about 9 lacs per operator in service areas like Delhi and Mumbai for another 24-30 months. The Committee also recommended to levy incremental charges for additional spectrum. However, on 31.01.2002, a note was put up by Mr. J.R. Gupta mentioning therein that a consensus had emerged after discussion that additional spectrum to the extent of 1.8 MHz (paired) beyond 6.2 MHz in 1800 MHz band might be released on case to case co-ordination basis to the Operators by charging additional 1% of revenue after customer base of 4-5 lacs was reached. On this note, Mr. Shyamal Ghosh agreed to the reduced subscriber base from 9 lacs to 4/5 lacs for allocation of additional spectrum and recommended to allocate additional spectrum beyond 6.2 MHz upto 10 MHz by charging only additional 1% of AGR. This note was approved by the then Minister of Communications and Information Technology on the same day i.e. 31.01.2002 itself. It resulted in issuance and circulation of General Order on 01.02.2002 to all Cellular Mobile Telecom Service (CMTS) Operators. As per the allegations in the FIR, the accused public servants entered into a criminal conspiracy with the accused beneficiary companies in taking the aforesaid decision which caused undue cumulative pecuniary advantage of Rs.846.44 crores to the beneficiary companies and corresponding loss to the Government Exchequer, by charging an additional 1% AGR only for allotting additional spectrum from 6.2 MHz upto 10 MHz (paired) instead of charging 2% AGR, as per the existing norms.

Thus, the allegation, in nutshell, is for grant of additional spectrum by lowering the condition of 9 lacs subscribers to 4/5 lacs subscribers, by only charging additional 1% AGR instead of charging additional 2% AGR which has caused losses to the Government Revenue. It is further the case of the prosecution that this was the result of conspiracy hatched between Mr.Shyamal Ghosh and the then Minister as well as the accused Cellular Operator Companies. The decision was taken in haste on 31st January, 2002 itself inasmuch as note was prepared by Mr. J.R. Gupta on that day which was agreed to by Mr. Shyamal Ghosh and thereafter approved by the Minister on the same day. On that basis, circular was issued on the very next day i.e. on 01.02.2002. As per the charge-sheet, investigation has also revealed that all this was done in haste to help M/s Bharti Cellular Limited which had come out with Initial Public Offer (IPO) that was opened and it was not getting good response from the public as it had remained under-subscribed. The moment such a decision of allocating additional spectrum was taken on 31.01.2002, on the very next day, the issue got over- subscribed.

The Arguments: Respondents Mr. K. K. Venugopal, learned senior counsel appearing for the CBI, refuted the aforesaid submissions in strongest possible manner. He referred to the various portions of the charge-sheet where allegations against the accused persons are stated and outcome of the investigation revealed. His endeavour was to demonstrate the manner in which the decision was taken, resulting into huge loss to the Government Exchequer and, prima facie, it was established that such a decision was taken to help the accused Telecom Companies. He argued that once the companies are charged with mens rea offences, they require guilty mind as these are not strict liability offences. However, the companies would act through their Directors/Officers only and the mens rea/guilty mind would be of those persons who are controlling the affairs of the companies. He referred to the counter affidavit filed by the CBI which, in summary form, mentions the role of different persons including the manner in which note was put up by Mr. J.R. Gupta; the changes that were made by Mr. Shyamal Ghosh to the said note allegedly to benefit the companies; and the manner in which it was approved by the Minister. This affidavit also mentions that there is evidence on record to show that the appellant Mr. Sunil Mittal had met late Shri Pramod Mahajan during 2001-2002 for getting allocated additional spectrum beyond 6.2 MHz for tele-service area of his company. There was also evidence of meetings between the appellant and Mr. Shyamal Ghosh for the same purpose during the same period which would constitute the circumstantial evidence to implicate these persons. The thrust of his submission, thus, is that it is the "human agency" in the accused companies who was responsible as it was a mens rea offence and such an agency/person has to be the top person, going by the circumstantial evidence. Therefore, even if in the charge- sheet, names of these appellants were not included, the Special Judge was within his powers to look into the matter in its entirety as the charge- sheet along with documents spanning over 25000 pages was submitted to him.