Case: Dr. Subramanian Swamy Vs. Dr. Manmohan Singh

3. For the last more than three years, the appellant has been vigorously pursuing, in public interest, the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due to arbitrary and illegal grant of licences at the behest of Mr. A. Raja (respondent No. 2) who was appointed as Minister for Communication and Information Technology on 16.5.2007 by the President on the advice of Dr. Manmohan Singh (respondent No. 1). After collecting information about the grant of licences, the appellant made detailed representation dated 29.11.2008 to respondent No. 1 to accord sanction for prosecution of respondent No. 2 for offences under the 1988 Act. In his representation, the appellant pointed out that respondent No. 2 had allotted new licences in 2G mobile services on `first come, first served basis to novice telecom companies, viz., Swan Telecom and Unitech, which was in clear violation of Clause 8 of the Guidelines for United Access Services Licence issued by the Ministry of Communication and Information Technology vide letter No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and, thereby, caused loss of over Rs. 50,000 crores to the GovernmentThe appellant gave details of the violation of Clause 8 and pointed out that the two officers, viz., R.J.S. Kushwaha and D. Jha of the Department of Telecom, who had opposed the showing of undue favour to Swan Telecom, were transferred just before the grant of licences and Bharat Sanchar Nigam Limited (BSNL) which had never entered into a roaming agreement with any operator, was forced to enter into such an agreement with Swan Telecom. The appellant further pointed out that immediately after acquiring 2G spectrum licences, Swan Telecom and Unitech sold their stakes to foreign companies, i.e., Etisalat, a telecom operator from UAE and Telenor of Norway respectively and, thereby, made huge profits at the expense of public revenue. He claimed that by 2G spectrum allocation under respondent No. 2, the Government received only one-sixth of what it would have received if it had opted for an auction. The appellant pointed out how respondent No. 2 ignored the recommendations of the Telecom Regulatory Authority of India (TRAI) and gave totally unwarranted benefits to the two companies and thereby caused loss to the Public Exchequer. Some of the portions of the appellants representation are extracted below:Clause 8 has been violated as follows: While Anil Dhirubhai Ambani Group (ADAG), the promoters of Reliance Communications (R Com), had more than 10 per cent stake in Swan Telecom, the figures were manipulated and showed as 9.99 per cent holding to beat the said Clause. The documents available disclose that on March 2, 2007, when Swan Telecom applied for United Access Services Licences, it was owned 100 per cent by Reliance Communications and its associates viz. Reliance Telecom, and by Tiger Trustees Limited, Swan Infonet Services Private Limited, and Swan Advisory Services Private Limited (see Annexure I). At one or the other point of time, employees of ADAG (Himanshu Agarwal, Ashish Karyekar, Paresh Rathod) or its associate companies have been acquiring the shares of Swan Telecom itself. But still the ADAG manipulated the holdings in Swan to reduce it to only 9.99 per cent. Ambani has now quietly sold his shares in Swan to Delphi Investments, a Mauritius based company owned by Ahmed O. Alfi, specializing in automobile spare parts. In turn, Swan has sold 45% of its shares to UAEs Emirates Telecom Corporation (Etisalat) for Rs.9000 crores! All this is highly suspicious and not normal business transactions. Swan company got 60% of the 22 Telecom licenced areas at a throw away price of Rs.1650 crores, when it was worth Rs.60,000 crores totalRoom has operations in the same circles where the application for Swan Telecom was filed. Therefore, under Clause 8 of the Guidelines, Swan should not have been allotted spectrum by the Telecommunication Ministry. But the company did get it on Ministers direction, which is an undue favour from him (Raja). There was obviously a quid pro quo which only a CBI enquiry can reveal, after an FIR is registered. There is no need for a P/E, because the CVC has already done the preliminary enquiryQuite surprisingly, the 2G spectrum licences were priced at 2001 levels to benefit these private players. That was when there were only 4 million cellphone subscribers; now it is 350 million. Hence 2001 price is not applicable todayImmediately after acquiring 2G spectrum licences both Swan and Unitech sold their stakes to foreign companies at a huge profits. While Swan Telecom sold its stakes to UAE telecom operator Etisalat, Unitech signed a deal with Telenor of Norway for selling its share at huge premiumsIn the process of this 2G spectrum allocation, the government received only one-sixth of what it would have got had it gone through a fresh auction route. The total loss to the exchequer of giving away 2G GSM spectrum in this way - including to the CDMA operators - is over Rs.50,000 crores and is said to be one of the biggest financial scams of all times in the countryWhile approving the 2G licences, Minister Raja turned a blind eye to the fact that these two companies do not have any infrastructure to launch their services. Falsely claiming that the Telecom Regulatory Authority of India had approved the first-cum-first served rule, Raja went ahead with the 2G spectrum allocation to two debutants in the Telecom sector. In fact earlier TRAI had discussed the spectrum allocation issue with existing services providers and suggested to the Telecom Ministry that spectrum allocation be made through a transparent tender and auction processThis is confirmed by what the TRAI Chairman N. Misra told the CII organized conference on November 28, 2008 (Annexure 2). But Raja did not bother to listen to the TRAI either and pursued the process on `first come, first served basis, benefiting those who had inside information, causing a loss of Rs.50,000 crores to the Government. His dubious move has been to ensure benefit to others at the cost of the national exchequerThe request made in the representation, which was relied upon by the learned Attorney General for showing that the appellant had himself asked for an investigation4. Since the appellant did not receive any response from respondent No.1, he sent letters dated 30.5.2009, 23.10.2009, 31.10.2009, 8.3.2010 and 13.3.2010 and reiterated his request/demand for grant of sanction to prosecute respondent No.2. In his letter dated 31.10.2009, the appellant referred to the fact that on being directed by the CVC, the Central Bureau of Investigation (CBI) had registered a first information report, and claimed that prima facie case is established against respondent No. 2 for his prosecution under Sections 11 and 13(1)(d) of the 1988 Act. The appellant also claimed that according to various Supreme Court judgments it was not necessary to carry out a detailed inquiry, and he had produced sufficient evidence for grant of sanction to initiate criminal prosecution against respondent No. 2 for the misuse of authority and pecuniary gains from corrupt practices. In his subsequent letters, the appellant again asserted that the nation had suffered loss of nearly Rs.65,000 crores due to arbitrary, unreasonable and mala fide action of respondent No.2. In letter dated 13.3.2010, the appellant referred to the proceedings of the case in which this Court refused to interfere with the order of the Delhi High Court declaring that the decision of respondent No.2 to change the cut off date fixed for consideration of applications made for grant of licences was arbitrary and mala fide5. After 1 year and 4-1/2 months of the first letter written by him, Secretary, Department of Personnel and Training, Ministry of Personnel sent letter dated 19.3.2010 to the appellant mentioning therein that the CBI had registered a case on 21.10.2009 against unknown officers of the Department of Telecommunications (DoT), unknown private persons/companies and others and that the issue of grant of sanction for prosecution would arise only after perusal of the evidence collected by the investigating agency and other material provided to the Competent Authority and that it would be premature to consider sanction for prosecution at that stage6. On receipt of the aforesaid communication, the appellant filed Civil Writ Petition No. 2442/2010 in the Delhi High Court and prayed for issue of a mandamus to respondent No.1 to pass an order for grant of sanction for prosecution of respondent No. 2. The Division Bench of the Delhi High Court referred to the submission of the learned Solicitor General that when respondent No. 1 has directed investigation by the CBI and the investigation is in progress, it is not permissible to take a decision on the application of the appellant either to grant or refuse the sanction because that may affect the investigation, and dismissed the writ

Reasoning:
30. The CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab (1996) Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp. 1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225,  framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narains case31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true32. In the light of the above discussion, we shall now consider whether the High Court was justified in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to observe that the High Court had proceeded under a wholly erroneous assumption that respondent No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of the report to the Director, CBI for making an investigation into the matter to establish the criminal conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book all the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown officials of the DoT, unknown private persons/companies and others for offences under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next about one year, the matter remained dormant and the CBI took steps for vigorous investigation only when this Court intervened in the matter. The material placed on record does not show that the CBI had registered a case or started investigation at the instance of respondent No.133. On his part, the appellant had submitted representation to respondent No. 1 almost one year to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to examine and apprise him with the facts of the case. Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer sent the appellants representation to the DoT which was headed by none other than respondent No.2 against whom the appellant had made serious allegations of irregularities in the grant of licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the PMO then referred the matter to the Ministry of Law and Justice for advice. It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of the allegations made in his first representation and the fact that he had already supplied the facts and documents which could be made basis for grant of sanction to prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the matter pending and then took the shelter of the fact that the CBI had registered the case and the investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant and the judgments of this Court including the directions contained in paragraph 58(I) of the judgment in Vineet Narains case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter. By the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.