2G spectrum case: Can’t be tried under obsolete law, say accused

All 17 accused in 2G spectrum scam including Raja, DMK leader MK Kanimozhi, executives of some telecom companies, and government officials were acquitted by Special CBI Judge OP Saini in December 2017.
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Updated on Jan 24, 2020 12:10 AM IST
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Hindustan Times, New Delhi | ByNeeraj Chauhan, New Delhi

Two senior government officials indicted by the Central Bureau of Investigation (CBI) in the 2G spectrum scam, former telecom minister A Raja’s then private secretary RK Chandolia and ex-telecom secretary Siddharth Behura, have approached the Delhi High Court, claiming that the agency’s appeal against their acquittal has itself become “infructuous” with the new Prevention of Corruption Act, 2018 coming in force.

All 17 accused in 2G spectrum scam including Raja, DMK leader MK Kanimozhi, executives of some telecom companies, and government officials were acquitted by Special CBI Judge OP Saini in December 2017. In March 2018, CBI filed an appeal in the Delhi high court. The appeal has been pending for almost two years now.

Chandolia and Behura argued that by virtue of PC (amendment) Act, 2018, substituting the section 13 of PC Act, 1988, the charge of criminal misconduct no longer applies to them.

The new law describes criminal misconduct as misappropriation or conversion for a person’s own use, any property entrusted to a public servant or amassing assets disproportionate to known sources of income. It doesn’t take into account public servants giving pecuniary benefit to anyone else in his official capacity.

The old law, in contrast, defined criminal misconduct as a crime when public servants used illegal means to enrich themselves and abused their official position in the process.

CBI officials did not comment till the time of going to the press.

The 2G scam refers to the 2008 issue of 122 second generation (hence 2G) telecom licences and spectrum to companies. CBI’s charge was that this was done improperly and irregularly to benefit a few companies. Subsequently, the government’s audit watchdog, CAG, pegged the loss to the exchequer on account of the irregularities at Rs 1.76 trillion. In February 2012, the Supreme Court, monitoring the CBI probe, scrapped all licences. The 2G scam, as it came to be called, roiled the then United Progressive Alliance government and was one of the major corruption scandals under its watch — one some analysts hold partly responsible for its defeat in 2014.

In his application filed through lawyer Vijay Aggarwal, Chandolia has stated that “when the rigors of the PC Act 1988 have been mollified, then the benefit of the same ought to be extended retrospectively to him as he and all other accused were acquitted under the stringent section 13 (2) read with 13 (1) (d) of the PC Act, 1988”.

The intent of the earlier Act was only to deal with situations where public servants who demanded and accepted bribe for performing official duties were criminally prosecuted. “However, it was misused by overzealous agencies often acting on behalf of vested interests, and even bona fide decisions taken by public servants were often questioned on the basis of the benefit of hindsight,” Aggarwal said.

The new Act has done away with prosecution of public servants on the grounds of lack of judgement or bona fide decisions going wrong.

Interestingly, Chandolia has also sought relief citing other laws such as section 497 (adultery) and section 377 (ban on gay sex) that have been declared unconstitutional, claiming that prosecution in non-existing penal statues should be struck down.

“It is a settled proposition of law that once an act is repealed, it must be considered as if it had never existed and same would be considered obliterated from the statute books,” Aggarwal said.

“The applicant (Chandolia) and other accused persons have acquired a vested right after having been declared innocent and exonerated from all the charges including but not limited to under the stringent section 13 (1) (d) of PC act which is no longer a law in force,” the petition added. To be able to present a case against Chandolia, Aggarwal claimed, CBI will have to first establish whether the alleged acts attributed to him would amount to a crime under amended Section 13 of PC Act.

A similar petition has been filed by Behura as well, according to a person familiar with the development who asked not to be named.

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Monday, December 06, 2021