In a scathing comment, Special Court Judge OP Saini has described the CBI’s chargesheet against the 2G scam accused as “well choreographed”.
The judge has not spared the bureaucracy, for its ineptitude, nor the prosecution, for its incompetence. Towards the end of the 1500-page judgment, that records telecommunication policy formulation right from 1994, the judge almost laments the state of the bureaucracy, policy making and the Central Bureau of Investigation’s work.
He refers to many “public-spirited” interventions in the case, and their failure to produce concrete evidence.
“It is also to be noted that there are many representations on record made by various prominent public spirited persons before various Authorities relating to wrongdoing in the instant case. However, none of them also volunteered to enter the witness box. What does all this mean? Apparently this means that nobody had any good or first hand material in his possession. The fate of the case thus depended upon witnesses from DoT and from the companies of the accused. The witnesses from DoT were either highly guarded, and if I may say so hesitant, in their deposition, and also went against official record rendering themselves unreliable.”
“I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open Court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”
About the prosecution the judge says it started with “great enthusiasm and ardour” but as the case progressed it became “highly cautious and guarded”.
“...by the end, the quality of prosecution totally deteriorated and it became directionless and diffident.”
Interestingly, the public prosecutor arguing the case refused to provide written submissions despite promising to do so, said Justice Saini.
“Several applications and replies were filed in the Court on behalf of the prosecution. However, in the latter and also in the final phase of the trial, no senior officer or prosecutor was willing to sign these applications or replies and the same used to be signed by a junior most officer Inspector Manoj Kumar posted in the Court. When questioned, the reply of the regular Sr. PP would be that the learned Spl. PP would sign it and when the learned Spl. PP was questioned, he would say that CBI people would sign it. Ultimately, the petition/ reply would be filed under the signature of Inspector. This shows that neither any investigator nor any prosecutor was willing to take any responsibility for what was being filed or said in the Court.”
Oddly though, once the written submissions were provided the prosecutor refused to sign them. Prompting the judge to ask “what is the use of a document in a court of law, which is not signed by anyone?”
“Not only this, the most painful part is that learned Spl. PP was not ready
to sign the written submissions filed by him. What is the use of a document in a Court of law, which is not signed by anyone? When questioned as to why the learned Spl. PP was filing unsigned written submissions, his reply would be that some defence advocates had also not signed the written submissions. Great efforts had to be made to persuade the learned Spl. PP to sign the written submissions, but all in vain. Thereafter, written orders had to be repeatedly passed to make him sign the written submissions filed by him in the Court under the threat that unsigned written submissions would not be taken note of. Only thereafter he yielded and signed the written submissions.”
The judgment paints a picture of sloppy policy making and file-keeping by the bureaucracy. Illegible file notings, scattered policy papers and rules that bureaucrats themselves struggle to understand.
“It may be noted that the policy decisions of DoT are scattered in different official files and, as such, are difficult to trace and understand. For example, the introduction of UAS licensing regime and issue of addendum to NTP99 was dealt with in file D591.
The first-come first-served policy was enunciated in file D592.
TRAI Recommendations were sought vide noting in file D5 and were processed and approved therein. The issue of stoppage of processing of pending applications for UAS Licences awaiting TRAI Recommendations was dealt with in file D44.
The issue of sending a reference to learned SG was dealt with in file D7
and many important policy decisions were taken in this file. The issue of cutoff date was dealt with by opening a new file, that is, file D6. Note dated 07.01.2008,
Ex PW 60/O1, recorded by Sh. R.K. Chandolia for sending letters exchanged between Sh. A. Raja and Hon'ble PM to Sh. A. K. Srivastava, have been placed in file D598.
These are only a few examples of how policy issues are strewn around here and there in a disorderly manner.”
“Furthermore, notes recorded by various officers in the files are in highly illegible handwriting which are difficult to read and understand. A wrong impression and understanding is created by such badly written notes.”
“The lack of clarity in the policies as well as Guidelines also added to the confusion. The Guidelines have been framed in such technical language that meaning of many terms are not clear even to DoT officers. When the officers of the department themselves do not understand the departmental guidelines and their glossary, how can they blame companies/ others for violation of the same. The worst thing is that despite knowing that the meaning of a particular term was ambiguous and may lead to problems, no steps were taken to rectify the situation. This continued year after year. For example, in the instant case, large part of the controversy relates to interpretation of clause 8, dealing with substantial equity. The terms used in this clause include “Associate”, “Promoter”, “Stake” etc. No one in the DoT knows their meaning, despite the fact that the Guidelines were framed by the DoT itself. The interpretation of these words is haunting the DoT since these words were first used, but no steps were taken to assign them a specific meaning. In such circumstances, DoT officers themselves are responsible for the entire mess.”
The judge found no evidence was produced indicating any criminality by the accused and that the charge sheet “is based mainly on misreading, selective reading, non-reading and out of context reading of the official record”.
“Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness box. Lastly, if statements were made orally by the witnesses, the same were contrary to the official record and thus, not acceptable in law.”
He added that several facts in the “well choreographed” charge sheet were “factually incorrect” and held that the prosecution had failed “miserably”.
“I may add that many facts recorded in the charge sheet are factually incorrect, like Finance Secretary strongly recommending revision of entry fee, deletion of a clause of draft LOI by Sh. A. Raja, Recommendations of TRAI for revision of entry fee etc. The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.”