NO.1610/2011 Page 2 of 35 Siddhartha Behura, the then Secretary, Telecom (A-2), R.K.Chandolia (A-3), the then P.S. to the Minister, Shahid Balwa and Vinod Goenka, Directors, M/s Swan Telecom Pvt. Ltd. (A-4 and A-5 respectively).M/s Swan Telecom Pvt. Ltd (A-6), Sanjay Chandra, Managing Director, M/s Unitech Wireless Tamil Nadu Ltd. (A-7), M/s Unitech Wireless Tamil Nadu Ltd. (A-8), Gautam Doshi, Group Managing Director of Reliance, ADA Group (A-9), Surendra Pipara, Group President of Reliance, Anil Dhirubhai Ambani Group (A-10), Hari Nair, Sr.Vice President of Reliance, ADA Group (A-11) and M/s.Reliance Telecom Ltd. (A-12).BAIL APPL.NO.1610/2011 Page 2 of 35BAIL APPL.NO.1610/2011 Page 3 of 35It is also contended that he has roots in the society and, therefore, he is not likely to flee from the processes of law and since the charge-sheet has already been filed, the evidence is already underway, no useful purpose would be served by keeping the petitioner incarcerated and, therefore, it was prayed that he may be extended the benefit of grant of bail.BAIL APPL.In this regard, I have gone through the statements of Sh.A.K.Srivastava/PW-1, DDG (Access Service); Sh.Nitin Jain/PW-2, DDG (Data Services); Sh.R.K.Gupta/PW-3, the then ADG (AS); Sh.R.P.Agarwal/PW-20, the then Wireless Adviser, Deptt.of Telecommunications; Sh.Nripendra Mishra/PW-30, the then Chairman, TRAI; and Sh.P.K.Mittal/PW-50, the then DDG (AS-II) and one thing, which emerges from their statements, is very clear that the petitioner has been a perpetrator of BAIL APPL.NO.1610/2011 Page 20 of 35 the illegal design of A-1 and, therefore, his role was distinguishable from the ten accused persons, who have been granted the bail and were beneficiary of that illegal act.BAIL APPL.NO.1610/2011 Page 19 of 35BAIL APPL.NO.1610/2011 Page 20 of 35Another aspect, which is very interesting, in this case, is the fact that it has come in the statements of some of the witnesses that when this illegal and nefarious conspiracy of causing wrongful gain to certain private parties was being executed by A-1 with the help of co- accused A-2 and A-3, who were the two public servants, two employees of Department of Telecommunications, who had withstood like a rock and did not accede to the wishes of these core conspirators, it was the present petitioner, who was instrumental in getting them firstly transferred from the Department in order to remove the obstruction and to implement the illegal design of the 2G Spectrum being allocated to private persons and Unified Access Services allocated for ulterior considerations.BAIL APPL.NO.1610/2011 Page 21 of 35BAIL APPL.This order shall dispose off an application filed by the petitioner, Siddhartha Behura (A-2), the former Secretary, Department of Telecommunications, for grant of regular bail in respect of 2G Spectrum Scam cases, BAIL APPL.NO.1610/2011 Page 1 of 35 which was registered vide FIR No.RC DAI-2009(A)-0045 by the Central Bureau of Investigation (CBI).BAIL APPL.NO.1610/2011 Page 1 of 35Briefly stated, the facts of the case are that on 21.10.2009, Anti Corruption Branch of CBI had registered the aforesaid FIR on the allegations of criminal conspiracy and criminal misconduct against the unknown officials of Department of Telecommunications, Government of India and some unknown private persons/companies and others, under Section 120B IPC read with Section 13(2) & 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the Act") in respect of allotment of Letters of Intent, Unified Access Services (hereinafter referred to as UAS) Licenses and 2G Spectrum by the Department of Telecommunications.CBI had filed the first charge-sheet on 02.04.2011 in the Court of learned Special Judge, Patiala House Courts, New Delhi against A.Raja, the then Minister of Communications and Information Technology (A-1), BAIL APPL.A supplementary charge-sheet was filed on 25.04.2011 in the Court of learned Special Judge for offences under Section 120B IPC read with Section 7/11/12 of the Act against some additional accused persons in which the present petitioner was not named.After filing of the BAIL APPL.NO.1610/2011 Page 3 of 35 charge-sheet, charges have been framed against all the accused persons.The charges against the petitioner are essentially three in nature.The first charge, against the petitioner and other 16 accused persons, including A.Raja(A-1) and R.K.Chandolia(A-3), is that they all conspired to commit offences under sections 409/420/468/471 IPC and section 7 or section 11 read with section 12/13(2) read with section 13(d) of the Act. The second charge, which has been framed against the present petitioner, along with A-1, is for a substantive offence of breach of trust under section 409 read with section 120B IPC.The third charge, which is alternatively, framed against the petitioner and the A-1 is for cheating under section 420 read with section 120B IPC.BAIL APPL.NO.1610/2011 Page 4 of 35BAIL APPL.NO.1610/2011 Page 4 of 35The case is presently going on, for recording of prosecution evidence and I have been given to understand that statements of some of the witnesses have already been recorded by the prosecution.The present application for grant of regular bail of the petitioner was taken up along with the bail applications of the other five co-accused persons, A-13 to A-19, (except the companies).Aman Lekhi, learned senior counsel, was heard partially along with the other counsel, who had appeared for that set of accused persons, however, as the cases of those accused persons were treated as a separate class in itself on account of two reasons; firstly that those five accused persons were not public servants and, secondly, in their case the CBI had not opposed the grant of bail, therefore, they were heard and disposed of vide a separate order on 28.11.2011, while as the present case was segregated to be dealt with separately.Arguments were heard afresh in the present case after BAIL APPL.NO.1610/2011 Page 5 of 35 disposal of the bail applications of the aforesaid five accused persons and the submissions, which were made by Mr.Lekhi, learned senior counsel, for grant of bail to the petitioner, were essentially the following:BAIL APPL.NO.1610/2011 Page 5 of 35(i) The first and the foremost submission, which was made by Mr.Lekhi, learned senior counsel for the petitioner for grant of bail to the present petitioner, was that he is to be treated at par with the other co-accused persons, who have already been extended the benefit of bail both by the Supreme Court as well as by this Court.Emperor, AIR 1937 ALL.754 and Hira Lal Vs.Emperor, AIR 1917 ALL.BAIL APPL.NO.1610/2011 Page 9 of 35BAIL APPL.NO.1610/2011 Page 9 of 35(iii) It was next contended by Mr.Lekhi, learned senior counsel, that so far as the petitioner is concerned there are no allegations of having taken illegal gratification or obtaining any valuable consideration or committing abetment of these two offences, which may be punishable under sections 7 or 11 of the Act. It is also stated that so far as the petitioner is concerned, there is no allegation that he had any role in the alleged giving or taking of the bribe of `200 crores nor has he benefited in any manner whatsoever from the allocation of 2G Spectrum or Unified Access License.In this regard, the learned senior counsel has drawn the attention of the Court to certain correspondence, which had taken place between the officials of the Government, prior to 01.01.2008 in order to show so far as the BAIL APPL.NO.1610/2011 Page 10 of 35 petitioner is concerned, he has absolutely no role to play in the question of formulation of policy of first cum first serve basis and was only implementing the same in terms of the directions of the Department.BAIL APPL.NO.1610/2011 Page 10 of 35(iv) Next, it was contended by Mr.Lekhi, that the petitioner has already been in custody for almost 10 months and, thus, being incarcerated for the longest period and the fact he is not an influential person or has no political influence or clout, to influence the witnesses, he may not be denied the benefit of bail as has been extended to other persons, as the trial is going to last for quite some time.NO.1610/2011 Page 11 of 35BAIL APPL.NO.1610/2011 Page 11 of 35Keeping in view the aforesaid broad parameters, I intend to deal with the submissions, which have been raised by BAIL APPL.NO.1610/2011 Page 15 of 35 the learned senior counsel for the petitioner for the grant of bail.BAIL APPL.NO.1610/2011 Page 15 of 35B.B.Singh/PW-26, the then DDG (LF); Mr.The petitioner has been a member of elite bureaucracy.All the witnesses, whose statements have been recorded by the prosecution, no doubt, have to prove documents but, at the same time, they have also orally testified against the petitioner, which implicates him in the crime.NO.1610/2011 Page 30 of 35 also come by way of oral evidence in as much as the petitioner was posted as an Additional Secretary in the Department of Environment, when his mentor, A-1, was posted there as a Minister.Similarly, the factum of the oral orders, having been issued from time to time so as to permit the A-1, the main conspirator, to have a free hand in the execution of his illegal design, have been issued by the present petitioner, like fixation of four counters so as to defeat the policy of "first cum first serve" and implement it in a manner so as to benefit certain pre-determined parties or that the officials of the Department of Telecommunications, who is transferred out of the Department on the oral orders of the Secretary, DoT, clearly shows that there is a likelihood that in case the petitioner is released on bail he will try his best to subvert the trial by influencing the witnesses, who have testified against him especially to the extent to which their statements against the petitioner are oral.I, BAIL APPL.

Sections cited: Section 409 in The Indian Penal Code, Section 120B in The Indian Penal Code, Section 420 in The Indian Penal Code, Section 468 in The Indian Penal Code, Section 471 in The Indian Penal Code