Dr. Swamy's arguments in SC (April 24, 2012)

PC as accused in 2G, Question of Law: Dr. Swamy's arguments in SC (April 24, 2012)

I. QUESTION OF LAW

    

1. I may begin by reading two paragraphs of the impugned Order [at SLP Vol. I p. 63 at para 66 r/w paras 69-70 at p. 65 ].

2. Thus, the Learned Special Judge accepted my allegations as prima facie valid. These two allegations I made u/s 311 Cr. PC.

 

3. I submit that these two allegations find support in the judgment of this Hon’ble Court [(2012) 1 SCC 1] wherein it was held that spectrum “was “virtually gifted away” [para 91. P.58] since the spectrum licence price determined was at a “throw away price”. 

4. TRAI’s calculations and recent reserve price for public auction of 2G spectrum also support the first allegation of under pricing of spectrum. The total revenue estimated by TRAI as a consequence of proposed auctioning is now estimated at Rs. 70 lakh crores, and for much less spectrum against Rs. 15,000 crores earlier for 6.2 Mhz spectrum. 

5. Mr. Chidambaram as Finance Minister was bound by oath of office especially to safeguard government finances and he could have easily prevented Mr. Raja from going ahead with his plan, by invoking the Transaction of Business Rules No. 7(L) framed under Article 77 of the Constitution [Vol III, p.5-7 at 7]. But he did not. CAG disappointed

6. The prima facie conclusion therefore, based on the memos of three meetings of Mr. Chidambaram with Mr. Raja and twice together with the PM, two written communications of Mr. Chidambaram with the PM and with Raja,  and five memos prepared by MoF officials, is that Mr. Chidambaram deliberately chose not to safeguard the nation’s financial resources or defend the public interest, thereby caused a huge loss of revenue foregone.

7. Mr. Chidambaram by coming to an agreement with A. Raja to permit the acquisition, enabled Swan and Unitech to enrich themselves by selling equity even before roll out to two black-listed foreign companies, who thereby became beneficiary of defacto spectrum transfer [Vol III p.4]. 

8. By Competition Act Section 2 it was an acquisition and by Etisalat website it was a formation of a joint venture [Vol III p. 31] in which Swan now sold to Etisalat DB which became a junior partner.

9. This was violative of its Aug 28, 2007 Recommendation [No. 6.31(iv), which states: “ Any proposal for merger and acquisition shall not be entertained till roll out obligations are met”] and hence this violation is ultra vires the TRAI Act (1997) [Section 11(1) Fifth Proviso]. 

10. It be recalled that on October 17, 2007, the DoT had accepted the TRAI Report in toto. The dilution amendment on April 22, 2008 is a reckless disregard of the TRAI Act. 

11. The share dilution proposal was later cleared by the FIPB of which Mr. Chidambaram as FM was the ex-officio Chairman.

12. It was therefore neither legal, nor in the public interest or even I allege in the interest of national security.[Vol III p. 13-17 at p.15. and p. 28]. The main document is at p. 21-27 with IB Note 19-21]. 

13. That this meant pecuniary gain especially for Swan and Unitech is implied in this Hon’ble Court’s judgment [para 91, p. 58, op.cit.,] that “ some of the beneficiaries” of this licence allotment soon after and even before roll out of services, “offloaded their stakes to others in the name of transfer of equity or infusion of fresh capital by foreign companies, and thereby made huge profits” 

14. Had auction been done, this Hon’ble Court therefore observed, “the nation would have been enriched by many thousand crores”[Ibid].

15. According to yesterday’s TRAI’s calculation, Rs. 7 lakh crores, not just some thousand of crores.

16. On this possibility of windfall gains because of the under-pricing of spectrum, Mr. Chidambaram had been apprised of in the 30.1.08 meeting.

17. This Hon’ble Court thus decided that all 122 licences be cancelled as illegal and holding the offloading of shares as against public interest, and also  imposed a fine on Swan and Unitech [para102 (i)& (v), p. 63]. 

18. Therefore, as Counsel conducting my own Complaint Case, I after my Section 311 Cr. PC statement on oath before the Learned Special Judge, I submitted that it was prima facie proved that the offence u/s Section 13(1)(d)(iii) of the PC Act, was committed by Mr. Chidambaram, since the two required ingredients of the offence were present, i.e., as a public servant, he “obtained pecuniary benefits” for Swan, Unitech and others, which was “without any public interest”. 

19. And hence my plea for issue of process u/s 204, or postpone issue of process and order u/s 202 an inquiry. 

20. The Learned Special Judge thereafter ought to have proceeded according to the guidelines succinctly laid down by this Hon’ble Court [in (2010) 7 SCC 578 at 585-6 paras 16-21] for issue of process u/s 204 or for an inquiry u/s 202 Cr.PC. HOON

21. With Your Lordships’ permission, I shall now read from the relevant parts of impugned Order [Vol. I, starting at p. 36, paras. 47-49; p. 60, para 59; p.61, paras 60-61; p. 62, para 63  which is irrelevant for Section 13(1)(d)(iii) of the  PC Act; p. 63, para 66; p. 64-65, paras 67-69; p. 65, para 69].  

22. Instead, the Learned Special Judge dismissed my plea u/s 203, because I produced no evidence  to prima facie establish mens rea as an ingredient  or prove that Mr. Chidambaram had a criminal intent [paras 67-70]. 

23. The Learned Judge, furthermore, did not at all consider the question of postponement of process for further investigation u/s 202 of the Cr.PC.

24. The question of law thus is as follows: Is mens rea an essential ingredient for an offence to have been committed u/s 13(1)(d)(iii) of PC Act?

25. A bare reading of Section 13 is as follows…….         

26. Section 13(1)(d)(iii) was introduced as a new Section in the 1988 Act after repeal of the 1947 Act, and is significant in the difference in its wording from  the other sub-sections of Section 13 of the PC Act. viz.,  (i) & (ii), in terms of the stated ingredients of the offence of criminal misconduct. 

27. Comparing the two sub sections (i) and (ii) with sub-section (iii), brings out that in the former two sub sections, the adverb qualifies the verb “obtains” by “ by corrupt and illegal means” and “by abusing his position”  respectively, and in (iii) the adverb is “without any public interest” as the ingredient of criminal misconduct.

28. That is, the offence u/s 13(1)(d)(iii) of the PC Act has two ingredients: a public servant is said to commit the offence if he obtains for any person [i] any pecuniary advantage [ii] without any public interest. 

29. A bare reading thus of Section 13(1)(d)(iii) shows that mens rea or criminal intent is not an essential ingredient in Section. It was thus a clear intention of Parliament to exclude mens rea or criminal intent.

30. Essentiality of mens rea ingredient in any criminal offence, whether under IPC or under other enacted statutes, was gone into in a number of judgments of this Hon’ble Court. 

31. On this subject, of whether an enacted statute which provides for criminal punishment for special offences such as corruption, requires mens rea, I cite: (1964) 6 SCR 594 at 610; (1965) 1 SCR 123 at 145; (1978) 1 SCR 338 at 351-52.

32. The ratio of these judgments thus is that the statute enumerating certain criminal offences imposing punishment of incarceration need not require mens rea if instead strict liability is enumerated in the statute itself.

33. This question of mens rea u/s 13(1)(d)(iii) also arose before a Division Bench of the Delhi High Court, squarely in Runu Ghosh vs. CBI , wherein the CBI had argued what I am arguing here today.

34. The Honourable Bench decided on 21.12.11 in CRL. A. 482 of 2002, viz., six weeks before the impugned Order of the Special Court. This is pending now in this Hon’ble Court in SLP 24&25 of 2012. Final hearing listed on 7/8/12 for CBI counter arguments].

35. It was held therein [para. 73. P. 53 ] that: “the conclusion this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d)(iii). It would be sufficient… ” 

36. All the judgments cited by Learned Judge in his Order are of murder/ assassination cases at the stage of conviction and not at the prima facie threshold. 

37. In other words, citing Section 13(1) (d) (iii), I have shown prima facie that the two ingredients of the offence, “obtains” and “public interest”, are in the said decisions. 

II. CONCLUSION

38. It may thus be inferred that the Learned Trial Court Special Judge failed to appreciate Parliament’s intention, and thus wrongly dismissed my plea under Section 203 of the Cr.PC, erroneously holding that my complaint lacked prima facie evidence of criminality or mens rea. 

39. The Learned Special Judge ought to have summoned Mr. Chidambaram as an accused u/s 204 of the Cr.PC, or at the very least, postponed the issue of process and ordered a CBI investigation u/s 202 of the Cr. PC.

40. I submit that if the Learned Special Judge’s impugned Order stands, it could vitiate the trial. This Hon’ble Court has propounded the Doctrine of Parity [in (2007 5 SCC 403 at 411 para 23]. 

41. Invoking that Doctrine, if Raja is charged, so too prima facie must be similarly placed Mr. Chidambaram. 

42. My prayer is in para 21, page 85 of the SLP. 

43. My plea in the Trial Court is at p. 38-39,  . 

44. Your Lordships may please direct the Learned Special Judge to issue process and summon Mr. Chidambaram as an accused.