2G case: Court slams CBI for 'fabricating facts'

New Delhi: In an embarrassment to CBI, a special 2G court on Thursday discharged former Telecom Secretary Shyamal Ghosh and three telecom firms in the 2002 additional spectrum allocation case, saying that the charge sheet was "full of distorted and fabricated facts" and agency has tried to "mislead" the court.

Coming down heavily on CBI, the court said that the charge sheet was based on "deliberately redacted and garbled facts" and it was drafted in a manner to create an impression that a grave crime was committed, whereas there was none and there was "no incriminating material on record" against the accused.

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Special CBI Judge O P Saini also noted in his 235-page order that the charge sheet was filed for "extraneous reasons" and directed the CBI Director to conduct an inquiry against the erring officials and take action against them as per law.

The court said that CBI had "deliberately" not produced many relevant documents before it only to indicate that demand for additional spectrum started only after late Pramod Mahajan had joined as the Telecom Minister in 2001.

"The conclusion of the aforesaid analysis of the events, evidence, documents and other material on record is that the charge sheet is a distorted and fabricated document, based on deliberately redacted and garbled facts," the court said.

"It (charge sheet) has been so drafted as to create an impression of a grave crime, where there is none. An attempt has been made to create an impression in the charge sheet that everything was done on a single day in the dark hours of evening of January 31, 2002. There is no doubt that the charge sheet has been filed for extraneous reasons," it said.

The judge further said, "Since the charge sheet has been found to be full of distorted and fabricated facts and an attempt has also been made to mislead the court, Director CBI, is directed to conduct an inquiry against the erring officials and take action against them as per law."

"In the end, I find that there is no incriminating material on record against the accused and the accused deserve to be discharged. Accordingly, the accused stand discharged," the judge said.

Ghosh and three telecom firms -- Hutchison Max (P) Ltd, Sterling Cellular Ltd and Bharti Cellular Ltd -- were charge sheeted by CBI in the case relating to the Department of Telecommunications (DoT) allocating additional spectrum that had allegedly led to a loss of Rs 846.44 crore to exchequer.

Regarding the allegation by CBI that a "hasty decision" to allocate additional spectrum was taken by Pramod Mahajan on the recommendation of Ghosh, the court said, "though the views of officers and ministers were different, but the matter of additional spectrum was discussed at least four times in the department."

"The aforesaid discussion clearly indicates that matter was discussed and debated in the department and, as such, it cannot be said that it was a decision taken unilaterally in haste and without concurrence or consultation with Member (Finance)," it said.

The court said that various important aspects, like report of the Telecom Regulatory Authority of India (TRAI), were not considered by the CBI in its charge sheet and the allegations levelled by the agency were contrary to the records.

"The above discussion makes it clear that charge sheet has been drafted in such a manner as to create an impression that the demand for additional spectrum began only on the joining of late Pramod Mahajan as Minister with the presentation of COAI (Cellular Operators Association of India) to DOT on October 4, 2001, consequent to their letter dated September 19, 2001," it said.

"Relevant documents, such as TRAI reports, principle of level-playing field etc as already noted above, have not been taken note of in the charge sheet and even do not find mention in the statements of witnesses," the court said.

"Many relevant documents have either not been produced before the court or were kept away from the attention of the court by initially dubbing them as unrelied upon and an attempt was made to mislead the court," it noted in the order.

The court further said that CBI had "no idea" as to what their case was all about and on what documents they were relying upon.

"It is thus clear that prosecution has no idea as to what their case is all about and what document they are relying upon and what documents they are not relying," it said.

The court said that various documents, which were dubbed as unrelied upon by CBI, were "most important documents" and the agency had deliberately rendered it as inconsequential.

"This is strange conduct of the prosecution," it remarked.

VMNThe court also noted that CBI's conduct in "relegating most of these documents to a distant stage by not making them part of documents initially filed with the charge sheet and then dubbing them as unrelied upon and not placing on record certain other documents having important bearing on the case, cannot be approved of."

"It is thus clear that important documents have been withheld from the court or attempts have been made to distract the attention of the court from the important documents," the court observed.

Raising questions over the CBI's conduct in the case, it said that agency had "burdened" the court by filing numerous papers which were of no use and there was a "flip flop" by the prosecution regarding relied upon and unrelied upon documents.

"This dichotomy was deliberately done by the prosecution or the investigating officer as they knew that sooner or later the court would come to know of these documents and in that case, they can easily claim that the documents were already with the court.

"Many working days have been wasted in these unnecessary papers and searching out documents which really matter for the case," it said.

In its charge sheet, CBI had alleged that Ghosh had "deliberately" and with "malafide intention" not obtained comments of then Member (Finance) of DoT on the issue despite the matter involving huge "financial implications".

All the accused were chargesheeted for the alleged offence of criminal conspiracy (section 120-B) of the IPC and under provisions of the Prevention of Corruption Act.

The court had on August 31 reserved orders after hearing arguments on framing of charges as well as Ghosh's bail plea.

Ghosh, a 1965 batch retired IAS officer, was the Telecom Secretary between February 7, 2000 and May 31, 2002.

CBI had earlier argued that Ghosh had given additional spectrum to the telecom companies at "throwaway prices" causing a huge loss to the exchequer.

Ghosh had countered CBI's arguments saying private firms were not the only beneficiaries of surplus radio waves, but state-run MTNL and BSNL had also benefitted.

He had claimed that it cannot be said allocation was done primarily to benefit private companies and asserted that he had not abused his official position in any manner.

Similarly, the accused firms had also countered CBI's loss theory, saying they were allotted "spare radio waves" which would have caused gain to the government.