RAVINDER KUMAR CHANDOLIA vs. CENTRAL BUREAU OF INVESTIGATION & ORS.

* THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL.) NO. 72/2012
Date of Decision: 06.02.2012
RAVINDER KUMAR CHANDOLIA …… PETITIONER
Through: Mr. Vijay Aggarwal with Mr.
Gurpreet Singh, Advocates.

Versus
CENTRAL BUREAU OF INVESTIGATION & ORS.
……RESPONDENT
Through: Ms. Sonia Mathur, Advocate with
IO Rajesh Chahal.

CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.
1. The present petition is against the order of the trial court dated
29/07/2011 whereby the trial court dismissed the application of the
petitioner for dropping of proceeding on the ground that the sanction
accorded was illegal and without application of mind.

2. The instant case was registered on 21/10/2009 against unknown officials
of Department of telecommunication (hereinafter referred to as “DOT”),
government of India, unknown private persons/companies and others for
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the offences punishable under section 120-B IPC read with 13(2) r/w
13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as
the “PC Act”), on the allegations of criminal conspiracy and criminal
misconduct, in respect of allotment of Letters of Intent, Unified Access
Services (UAS) Licenses and spectrum by the DOT.

3. After investigation, the CBI filed a chargesheet against twelve accused
person including the present Petitioner, a public servant of the Joint
Secretary level.

4. Facts, as far as the same are relevant for the disposal of the present
petition, are that receipt of applications for new UAS licenses in DOT
has been a continuous process; the applications were processed in the
order in which they were received. However after A. Raja took over as
Minister of Communication & Information Technology in May 2007,
there was manipulation in the processing of these applications for UAS
licenses by DOT.

5. It is alleged that during this period the Petitioner, was PS to Minister of
Communication & Information Technology and was an active
participant in the alleged criminal conspiracy hatched by A. Raja,
MOC&IT. He had been continuously monitoring the status of the receipt
of the applications in Access Services (AS) Cell of DOT. He was
continuously updating himself with the status of the applications and
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names of applicant companies. On 24/09/2007, he enquired from the
concerned officer of AS Cell if the application of Unitech Ltd. for new
UAS licences has been received and directed that no application should
be accepted after the receipt of the application from M/s Unitech Ltd.,
which were expected to be received on the same day. When informed
that receipt of application should be stopped arbitrarily, the DDG (AS-I)
was asked to put up a note in this regard. A note dated 24/09/2007 was
put up by the AS Cell mentioning that if the receipt of applications is to
be discontinued, the public should be informed by way of a press release
and proposed that 10/10/2007 as the date till which applications may be
received.

6. It is alleged that the accused A. Raja in furtherance to the conspiracy to
ensure better prospects for his favoured companies, cut short the last
date of receiving applications to 01/10/2007. A press release was issued
to this effect on 24/09/2007 itself, which appeared in newspapers on
25/09/2007. It is further alleged that even though the cut off date was
announced in the press release as 01/10/2007, accused A. Raja in
conspiracy with other accused persons, had already taken a view to keep
the cut off as 25/09/2007, as earlier conveyed to the AS cell by the
Petitioner. This was also manifest when he approved an amended draft
letter to be sent to the ministry of Law & Justice, wherein the
alternatives proposed mentioned that only the application received up to
25/09/2007 would be considered to wrongly benefit the other accused
W.P.(Crl.) 72/2012 Page 3 of 17


persons/companies. Accused A. Raja approved the issue of this letter,
even though, his attention was drawn by the DOT officials to para 3.1.1
of NTP 99 which mandates adequate availability of spectrum for
allocating new licenses and TRAI’s repeated recommendations about
giving new licenses subject to availability of spectrum for existing
operators and for new operators. Accused A. Raja, however, decided to
send this letter to the ministry of Law & Justice for its opinion on the
various options indicated for allocation of new licenses.

7. Accused A.Raja in conspiracy with the Petitioner wrongly benefited
accused Sanjay Chandra, MD, M/s Unitech Ltd, M/s Unitech Wireless
(Tamilnadu) Pvt. Ltd. (representing all the 8 Unitech companies later
merged into it), accused Shahid Balwa, accused Vinod Goenka, M/s
Swan Telecom Pvt. Ltd by accommodating applications of M/s Unitech
group of companies and M/s Swan Telecom Pvt. Ltd into consideration
zone for all circles applied for, despite inadequate availability of
spectrum in many circles including Delhi ( one of the most lucrative)
ahead of the other companies standing in queue for these UAS licenses.

8. It is alleged that, accused A. Raja received a letter dated 02/11/2007
from the office of the Hon’ble Prime Minister in late evening. The
response to this letter was drafted by accused A. Raja and the Petitioner,
his PS at accused A. Raja’s camp office at his residence on the
intervening night of 02/11/2007 itself. However the aforesaid letter
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received from the PMO was concealed by the accused A. Raja which is
evident from the fact that, the aforesaid letter which required serious
consideration by the DOT in terms of policy issues, was not even dealt
with in the files of the DOT.

9. It is further alleged that in furtherance to the criminal conspiracy,
procedure was manipulated by accused A. Raja in conspiracy with
accused Sidharth Behura (Telecom Secretary w.e.f. 01/01/2008) and the
Petitioner and was redefined to benefit the aforementioned accused
persons/ companies which is manifest in the letter dated 26/10/2007 sent
by DOT to Secretary, Ministry of Law & Justice. This letter mentioned
that, “In the present scenario the number of applications are very large
and spectrum is limited and it may not be possible for the government to
provide LOI/License/Spectrum to all applicants at all if the existing
procedure is followed. Moreover the existing procedure of sequential
processing will also lead to inordinate delays depriving the general
public of the benefits which more competition will bring out.”

10. It is alleged that in furtherance of the conspiracy, the Petitioner, in
conspiracy with the accused Sidharth Behura, designed a scheme and
directed the DOT officials to implement it in which the LOIs were to be
distributed so as to favour their desired companies as contrary to the
practice of first-come first-served basis. Accused Sidharth Behura
approved the scheme. This ill-conceived design included establishing 4
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counters to distribute LOIs, in the committee room of Sanchar Bhawan,
nd
2 Floor, subverting the system of first-come first-served in letter as
well as spirit. In this design, the accused persons deliberately did not
ensure that only after the first batch of 4 applicants had been issued
LOIs, the second batch be called. The manner in which the counters
were placed, priority of the applicants as per date of application and the
number of LOIs/ Letters that were to be distributed at each counter, is as
mentioned below:

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11. It is alleged that accused A. Raja in conspiracy with accused Sidharth
behura, and the Petitioner and other accused persons allocated spectrum
to M/s Swan Telecom Pvt. Ltd. in Delhi circle unreasonably depriving
M/s Tata Teleservices Ltd. and M/s Spice Communications, which were
having priority over M/s Swan Telecom Pvt. Ltd., in terms of the Dual
Technology approvals and seniority of new applicants as per date of
application, respectively. Also M/s Unitech Wireless (Tamilnadu) Pvt.
Ltd. (representing all the 8 Unitech group companies later merged into
one) got spectrum in many circles ahead of M/s Loop Telecom, M/s Tata
Teleservices (dual technology), M/s S. Tel and M/s Swan Telecom. In
some circles M/s Unitech group got spectrum in full and in some circles
got partial spectrum ahead of other companies which had applied for
UAS licenses prior to M/s Unitech group. The allocation of new UAS
licenses and spectrum, in this manner, was in stark violation of the TRAI
recommendations dated 20/02/2003 and 27/10/2003 and NTP-99, which
mandated that applications for CMTS/ UAS licenses could be considered
only if sufficient spectrum was available for existing operators as well as
new applicants. Had this principle been followed, in most of the
aforementioned telecom circles M/s Unitech Wireless (Tamilnadu) Pvt.
Ltd. (representing all the 8 Unitech group companies later merged into
one) would not have got any license at all and M/s Swan Telecom Pvt.
Ltd would not have got UAS license for Delhi service area. After
accused A. Raj demitted the office of MOC&IT, DOT has now admitted
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the case of priority of TTSL/TTML for spectrum over new UAS
licensees.

12. It is alleged that during the said conspiracy, A. Raja, in conspiracy with
Sidharth Behura also forged his own note dated 07/01/2008 and used the
same to wrongly project & justify that the proposed amendment in press
release had the concurrence of the Law officer, with an intent to
fraudulently allocate UAS licenses and valuable spectrum to the accused
private companies on priority.

13. It is alleged that thus the aforementioned public servant, accused A.
Raja MOC&IT, accused Sidharth Behura, then Secretary (Telecom) and
the Petitioner, PS to the then MOC&IT in abuse of their official position
and in connivance with other accused persons/companies have caused
wrongful loss to the government of India and wrongfull gain to
themselves constituting commission of offences, during 2007-2009,
punishable u/s 120-B, 420, 468, 471 IPC and also punishable u/s 13(2)
r/w 13 (1)(d) of the PC Act, 1988 against accused persons, viz. A. Raja,
then MOC⁢ Sidharth Behura, then Secretary (Telecom); R.K.
Chandolia, then PS to MOC⁢ Shahid Usman Balwa, Director M/s
Swan Telecom Pvt. Ltd; M/s Swan Telecom Pvt. Ltd. (now Etisalat DB
Telecom Pvt. Ltd) through its director; Sanjay Chandra, Managing
Director of M/s Unitech Ltd; M/s Unitech wireless (Tamilnadu) Private
Ltd through its director; Sh. Gautam Doshi, Group Managing Director,
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Reliance ADA Group, Sh. Hari Nair, Senior Vice-President of Reliance
ADA Group; Sh. Surendra Pipara, Senior Vice President of Reliance
ADA Group and M/s Reliance Telecom Ltd. Through its director.

14. It is alleged that based on growth in Adjusted Gross Revenue (AGR) per
MHz per year during the years 2002-03 to 2007, which grew by 3.5
times during this time, additional revenue of around Rs. 22, 535.6 crores
in respect of entry fee of new UAS licenses granted by accused A. Raja
to various applicants and Rs. 8, 448.95 Crores in respect of Fee paid by
Dual Technology users, totaling to Rs. 30, 984.55 Crores could have
accrued to the government exchequer.

15. The challenge to the impugned order is mainly on three counts. Firstly,
the sanction order under Section 19 of PC Act shows non-application of
mind as the sanctioning authority did not consider the role of the
applicant, documents, statement of witnesses etc. Secondly, no sanction
under Section 197 of the Code of Criminal Procedure for prosecution of
the petitioner was obtained and thirdly, the investigation was bad as it
was without permission under Section 6A of the Delhi Special Police
Establishment Act.

16. As regards the first submission regarding the non-application of mind
by the sanctioning authority, it was submitted by the learned counsel for
the petitioner that the entire material, which was voluminous was not
placed before the sanctioning authority and if at all, it was placed before
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him, it was extremely impossible for him to have gone through and
apply his mind in a short duration of one to two days.

17. I have gone through the sanction order, which runs into three pages and
the competent authority has referred there the documents considered by
it. That apparently shows the application of mind by the competent
authority. The sanction is only an administrative decision and the
competent authority is at liberty to consider all the relevant documents,
which form the crux of the allegations. It is not required to consider
each and every document himself. The sanctioning authority was only
required to take a prima facie view whether there was sufficient material
against the accused on record to grant sanction or not. It is because the
provisions are meant to protect the honest government servants and not
to prevent the prosecution in a bona fide case. The order of sanction
apparently disclosed that the competent authority had considered the
evidence and other material placed before it. This court in its powers in
the present proceedings was neither sitting in appeal nor revision against
the sanction order. The law in this regard is well settled by various
pronouncements of the Supreme Court as well this court. The reference
is made to the decision of the Division Bench of this court in Kushal
Kumar Vs. CBI and Another, 2009 I AD (Delhi) 599. In this case,
similar contention was raised and it was held thus:
“10. The order of sanction in a given case must ex facie disclose that
the sanctioning authority had considered the evidence and the
material placed before it. The court is not required to sift and weigh
W.P.(Crl.) 72/2012 Page 10 of 17


evidence collected by the investigation officer during investigation of
the case to know if the sanction order was valid and was neither
unmindful nor was passed in a mechanical manner. Relevancy of
evidence collected is an aspect which has to be examined by the
court at the stage of trial and no this court for invalidating the
sanction. Therefore it cannot be said that the impugned sanction was
granted in a mechanical manner. The sanction was granted vide a
detailed order wherein all the facts and evidence collected by the
Investigation Agency during the investigation against the Petitioner
has been discussed.”

12. Officer signing the sanction order is not required to state that he
had personally scrutinized the file and had arrived at the required
satisfaction. The allegations made in the First Information Report
(FIR) and the order granting sanction if true, would clearly establish
that the accused was rightly prosecuted and was guilty of a criminal
misconduct. The truthfulness of the allegations and the establishment
of the guilt can only take place when the trial proceeds without any
interruption. Therefore, it cannot be presumed that there was no
application of mind when the sanction of the Government was
obtained.”

18. In the case of Kushal Kumar (supra), reliance was placed on the
under-mentioned observations of the Supreme Court in the case of State
of Bihar Vs. P.P.Sharma, IAS, 1992 Supp (1) SCC 222, which reads
thus:

“It is equally well settled that before granting sanction the
authority or the appropriate government must have before it the
necessary report and the material facts which prima facie establish
the commission of offence charged for and the appropriate
government would apply their mind to those facts. The order of
sanction is only an administrative order and not a quasi-judicial
one nor is a lis involved. Therefore, the order of sanction need not
contain detail reasons in support thereof as was contended by Shri
Jain. But the basic facts that constitute the offence must be
apparent on the impugned order and the record must bear out the
W.P.(Crl.) 72/2012 Page 11 of 17


reasons in that regard. The question of giving an opportunity to the
public servant at that stage as was contended by the respondents
does not arise. Proper application of mind to the existence of
prima facie evidence of the commission of the commission of the
offence is only a pre-condition to grant or refuse to grant sanction.
When the government accorded sanction, section 114 (e) of the
Evidence Act raises presumption that the official acts have been
regularly performed….”

19. Having noted the law on the point as above, it may be reiterated that
what is required to be established is that the sanction was given in
respect of the facts constituting the offence with which the accused is
proposed to be charged. It might be desirable that the facts should be
referred to in the sanction order itself, but if they do not appear on the
face of it, the prosecution can establish the same by adducing the
evidence that those facts were placed before the sanctioning authority.
Having examined the sanction order, it is evidently clear that not only
the evidence has been discussed and taken care of by the sanctioning
authority, but it has also referred to the facts leading to the prosecution
of the petitioner. Further, as per Section 114(e) of the Evidence Act,
there was an existing presumption of sanction of prosecution of the
petitioner by the sanctioning authority in the discharge of his regularly
performed officials acts.

20. The next contention of the learned counsel for the petitioner that
there was no sanction under Section 197 CrPC is also untenable. The
learned counsel for the petitioner has relied upon the cases of State of
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M.P. Vs. Sheetla Sahai, 2009 (VIII) AD (SC) 603, C.P.Thakur Vs.
CBI, 2009 (4) AD (Delhi) 477 and Shreekantiah Ramayya Munipalli
Vs. State of Bombay, (1955) 1 SCR, 1177 to contend that the
prosecution was bad in the absence of sanction under Section 197 CrPC.
In the case of Kushal Kumar (supra), this court considered a large
number of decisions holding that when sanction has been granted under
Section 19 of the P.C.Act, no sanction under Section 197 CrPC is
required.

21. It is settled law that irrespective of the nature of charge, it was to
depend upon the facts of each case as to whether the sanction was
required or not under Section 197(1) CrPC. The Supreme Court in the
case of Amrik Singh Vs. State of Pepsu, AIR 1955 SC 309 very
categorically held that “if the acts complained of are so integrally
connected with the duties attaching to the office as to be inseparable
from them, then sanction under Section 197(1) CrPC would be
necessary; but if there was no necessary connection between them and
the performance of those duties, the official status furnishing only the
occasion or opportunity for the acts, then no sanction would be required.

22. Likewise, in the case of P.Arulswami Vs. State of Madras, AIR
1967 SC 776, the Supreme Court, after discussing various decisions on
the subject held thus:
W.P.(Crl.) 72/2012 Page 13 of 17


“.…A public servant can only be said to act or to purport to act
in the discharge of his official duty, if his act is such as to lie
within the scope of his official duty. Thus, a judge neither acts
nor purports to act as a judge in receiving a bribe, though the
judgment which he delivers may be such an act; nor does a
Government medical officer act or purport to act as a public
servant in picking the pocket of a patient whom he is examining,
though the examination itself may be such an act. The test may
well be whether the public servant, if challenged, can reasonably
claim that, what he does, he does in virtue of his office..”.


23. The sum and substance is that it is not every offence committed by
public servant having done by him while he is actually engaged in the
performance of his official duties that would require sanction for
prosecution under Section 197(1) CrPC. However, if the act complained
of is directly connected with his official duty, so that it could be claimed
to have been done by virtue of his office, then the sanction would
necessarily be required. In other words, if the offence is entirely
unconnected with the official duty, there can be no protection but, if it is
committed within the scope of the official duty or in excess of it, then
the protection is certainly available.

24. In view of the law noted above, the reliance placed by the petitioner
on the cases of State of M.P. Vs. Sheetla Sahai (supra), C.P.Thakur
(supra) and Shreekantiah Ramayya Munipalli (supra) is highly
misplaced. All these cases are on their peculiar facts. The acts
complained of in these cases were done in discharge of the official duties
and thus, required sanction under Section 197 CrPC.
W.P.(Crl.) 72/2012 Page 14 of 17


25. Now, applying the test of the dictum of the law in the instant case, it
would be noted that there is sufficient material against the petitioner to
demonstrate that acts complained of were not part of his duty as a public
servant. It is alleged that the petitioner, in conspiracy with other co-
accused persons played an active role in determining the cut off date for
the applications for the issue of UAS licences received up to 25.9.2007
in order to give undue favour to M/s. Swan Telecom Pvt. Ltd. and M/s.
Unitech Limited. There are also allegations against him having assisted
the co-accused A.Raja in drafting the letters to the Prime Minister
incorporating substantial changes in the existing policy for grant of UAS
licences. He was also allegedly instrumental in determining the
methodology of distribution of letters of intent to the applicants and also
that he had pressurized the officials of the department for allocation of
spectrum to the aforesaid companies. All these allegations are prima
facie substantiated from the testimonies of PW1 Avdesh Kumar
Srivastava and PW20 R.P.Aggarwal. In addition to the testimonies of
these two witnesses, there are also testimonies of incriminating nature of
PW6 N.M.Manickam, PW7 K.Sridhara and PW103 Aseervatham
Achari, pointing the finger of guilt of mala fide decisions on the part of
the petitioner. The testimonies of these witnesses, by any means, do
indicate that the alleged acts were committed by him while acting in his
official capacity as P.S. to the Minister of Communication &
Information Technology.

W.P.(Crl.) 72/2012 Page 15 of 17


26. With regard to the contention that there was no permission under
Section 6A, DSPE Act, it may be noted that prima facie, no approval
was required at the first instance since the FIR was registered on
21.10.2009 against unknown officials of the Department of
Telecommunication and also unknown private persons/companies and
others. In this regard, it was submitted by the learned Special P.P. that
when involvement of the petitioner came on record in the statement of
PW1 A.K.Srivastava, the matter was considered and immediately
thereafter, approval was sought and granted on 7.12.2010. Therefore, I
do not find any further merit in the submission of the learned counsel for
the petitioner with regard to this issue. It may again be reiterated that the
purpose of this Section is also to protect the honest decision makers and
not to defeat the bona fide investigation or trial.

27. From all this, I am of the view that no sanction under Section 197
CrPC was required in the instant case as the alleged acts of the petitioner
did not fall within the scope of his official duties. The FIR was initially
registered against the unknown persons and so, there was no initial
permission required under Section 6A DSPE Act. In any case, the
permission was obtained under Section 6A DSPE Act after the
involvement of the petitioner came to be known. There was prima facie
incriminating material against the petitioner and the sanctioning
authority had granted sanction of prosecution under Section 19 of P.C.
Act after due application of mind.
W.P.(Crl.) 72/2012 Page 16 of 17


28. In view of my above discussion, I do not find any merit in the
present petition. It is accordingly dismissed.

M.L. MEHTA, J.
FEBRUARY 06 , 2012/ akb
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