(arising out of Special Leave Petition (Crl.) No. 2961 of 2013)




It would be prudent to mention in brief the case set up by the CBI in the charge-sheet to have the flavor of the prosecution case. Though we are not much concerned about the merits of the allegations in these proceedings, a brief account thereof will facilitate in understanding the background leading to the roping in of the appellants in these proceedings. During monitoring of the investigation of CBI Case No. RC-DAI- 2009-A-0045 (2G Spectrum Case), this Court vide its order dated 16.12.2010 directed CBI to investigate the irregularities committed in the grant of licences from 2001 to 2007 with partial emphasis on the loss caused to the public exchequer and corresponding gain to the Licensees/Service Providers. Accordingly, in compliance to the said order, a Preliminary Enquiry vide No. PE-DAI-2011-A-0001 was registered on 04.01.2011 at CBI, ACB, New Delhi. During inquiry of the said PE, it was learnt from reliable sources that vide a decision dated 31.01.2002 of the then MoC & IT, on the recommendation of certain DoT officers, the allocation of additional spectrum beyond 6.2 MHz up to 10 MHz (paired) was approved wherein only 1%additional revenue share was charged thereby causing revenue loss to Government exchequer. As pointed above, on the basis of the outcome of the aforesaid inquiry, a regular case was registered on 17.11.2011 for the offences punishable under Sections 120-B IPC r/w 13 (2) and 13 (1)(d) of the Prevention of Corruption Act, 1988 (for short, ‘PC Act’). It was against Mr. Shyamal Ghosh, Mr. J.R. Gupta and the three Cellular Companies, names whereof have already been mentioned above. The main allegation is that additional spectrum beyond 6.2 MHz up to 10 MHz (paired) was approved at an additional revenue share at the rate of 1% only, meaning there by the said additional revenue should have been at a higher rate. As per the investigation, Cellular Operators Association of India (COAI) had made a request to DoT, in the year 2001, for allocating additional spectrum particularly in Delhi and Mumbai service areas. On this, Technical Committee was constituted which gave its report on 21.11.2001 recommending therein that 6.2 MHz spectrum was sufficient for a subscriber based out of about 9 lacs per operator in service areas like Delhi and Mumbai for another 24-30 months. The Committee also recommended to levy incremental charges for additional spectrum. However, on31.01.2002, a note was put up by Mr. J.R. Gupta mentioning therein that a consensus had emerged after discussion that additional spectrum to the extent of 1.8 MHz (paired) beyond 6.2 MHz in 1800 MHz band might be released on case to case coordination basis to the Operators by charging additional 1% of revenue after customer base of 4-5 lacs was reached. On this note, Mr. Shyamal Ghosh agreed to the reduced subscriber base from 9 lacs to 4/5 lacs for allocation of additional spectrum and recommended to allocate additional spectrum beyond 6.2 MHz up to 10 MHz by charging only additional 1% of AGR. This note was approved by the then Minister of Communications and Information Technology on the same day i.e. 31.01.2002 itself. It resulted in issuance and circulation of General Order on 01.02.2002 to all Cellular Mobile Telecom Service (CMTS) Criminal Appeal No. of 2015 & Ors. Page 9 of 58 (arising out of SLP (Crl.) No. 2961 of 2013 & Ors.) Operators. As per the allegations in the FIR, the accused public servants entered into a criminal conspiracy with the accused beneficiary companies in taking the aforesaid decision which caused undue cumulative pecuniary advantage of Rs.846.44crores to the beneficiary companies and corresponding loss to the Government Exchequer, by charging an additional 1% AGR only for allotting additional spectrum from 6.2 MHz up to 10 MHz (paired) instead of charging 2% AGR, as per the existing norms….read more