DMK MP Kanimozhi on Thursday told a Delhi court that she cannot be charged with the offence of criminal breach of trust as the CBI did not attribute any role to her in allocation of licenses for the 2G spectrum.
"They (Kanimozhi and CEO of DMK-run Kalaignar TV Sharad Kumar) are not allottees of the licenses for 2G spectrum. Section 409 (criminal breach of trust by a public servant) of the IPC cannot be used against them as they are neither public servants nor played any role in the spectrum allocation," senior advocate Altaf Ahmed told Special CBI Judge O P Sani.
Kanimozhi, who is in jail since May 20 after her bail plea was dismissed in the case, said the charge sheet "did not contain a word" that she conspired or played a role in alleged "dishonest disposal" of public property (spectrum).
"Other lawyers have already argued that spectrum was not property which can be disposed off and it cannot be entrusted to others. My case is that I was not involved at all," Ahmed said.
CBI has sought framing of charges of criminal breach of trust against former telecom minister A Raja and others. If convicted, they may face life imprisonment as maximum penalty.
It also sought to try rest of the 14 accused, including Kanimozhi under same penal provision by making them a party to conspiracy allegedly hatched by Raja and two other public servants. CBI, in its plea, said Raja and two government servants had a dominion over valuable 2G spectrum in their respective capacities as public servants and they flouted law in award of licenses, which made out a case of criminal breach of trust.
The defence lawyer referred to statements of witnesses saying "they have said that Kanimozhi was a founder director in Kalaignar TV and used to take keen interest in the company. They did not say that she took interest in spectrum."
Discussing the role of Sharad Kumar, the lawyer said he used to take decisions for the channel with the approval of the board of directors but had no role in grant of licenses.
Senior advocate Siddharth Luthra, appearing for film producer Karim Morani, started his arguments by saying "I have no comments on the allotment of spectrum."
"I was not the part of the first charge sheet and the charges of criminal conspiracy is not invoked against me in the second charge sheet. I do not know as to how this section (409) has been invoked against me," he said.
"It is a dilatory tactics of CBI and a malafide exercise to delay the order on framing of charges," he said while concluding his brief arguments.
Another senior lawyer Aman Lekhi, appearing for former telecom secretary Siddhartha Behura, said the fresh plea of CBI has been filed as it got scared after the court asked for the report of ministry of law and justice.
The report had indicated that Swan Telecom was not an associate firm of Reliance Telecom Ltd.
"When the court directed the CBI to place on record the law ministry report, they (CBI) got scared that whatever (documents) they were withholding, will be revealed and that would show their lie," Lekhi said.
The application of CBI to invoke additional charge of criminal breach of trust was "bereft of sense", he said.
"The agency has failed to explain that when the record is same and no error was committed by them (CBI) earlier then how can they bring section 409 at this stage," he said.
Lekhi asked the CBI to show evidence to prove disposal of spectrum and "also the alleged facts supporting illegal acts done by Behura."
"You (CBI) do not want them (accused) to get bail because of the simple reason that you have a lot to hide outside," Lekhi said.
Senior advocate S S Gandhi, appearing for Unitech Wireless, said CBI did not talk about the role of the company and how the price of spectrum was determined.
"How is my client an accused ? They did not determine the price of spectrum and there is no allegation that they influenced the determination of price. There is no dominion over spectrum. It is not sold but it is just used," he said.
Another senior lawyer R S Cheema, appearing for Sanjay Chandra, MD of Unitech, said "why CBI has not challaned all the 10 beneficiaries (companies) of spectrum?"
"If spectrum is a property then out of the ten, why only two firms were challaned. The other eight companies are also in possession of that property. Then every beneficiary should be brought before this court," he said.
The counsel said that if the property (spectrum) is stolen then it must be recovered from all of them who are having it.