All acquitted, CBI 'guilty'

It came as a shock to many when a Special CBI Court acquitted former telecom minister Andimuthu Raja, the DMK's Rajya Sabha MP Kanimozhi and all the other accused in the infamous 2G spectrum allocation case on December 21, disposing of the case six years after trial began.

Senior Congress leader Kapil Sibal, who came up with the "zero loss" theory in 2011 to debunk allegations of a scam, wasted no time in saying that the verdict vindicated his stand that there was "no loss and no scam."

He demanded an apology from former Comptroller and Auditor General (CAG) of India Vinod Rai for his report that said the government had suffered a humongous Rs 1.76 lakh crore "presumptive loss" due to irregularities in the 2G allocations. It was that scandalous figure that kicked off the Anna Hazare-Baba Ramdev anti-corruption protests in 2011-12, on the back of which the Narendra Modi-led BJP had ridden to power, decimating Congress in the 2014 Lok Sabha elections. Sibal also demanded an apology from the BJP, charging the party with running a conspiracy using the 2G scam charges.

It is not easy to decide a case that has already proved so earth-shattering for the entire nation, especially one in which, everybody thought, wrongdoing is as clear as daylight. And to deliver a verdict that goes against such a broad base of opinion is astonishing.  

But for Judge O P Saini, the job was quite simply to look beyond the "rumour, gossip and a few artfully arranged facts" and decide it on the merits of the case presented by the CBI and the prosecution.  

In doing so, the judge concluded that it was the prosecution that had "miserably failed" to prove "any of the charges" that the CBI and the Enforcement Directorate (ED) had made against Raja and the others in the respective charge sheets.

"In the beginning, the prosecution started with great enthusiasm and ardour. However, …it became highly cautious and guarded…making it difficult to find out what the prosecution wanted to prove. By the end, the quality of prosecution totally deteriorated and it became directionless and diffident," the judge said.

Hours after the verdict, the CBI claimed that the court did not "appreciate" the evidence put on record by the prosecution "in proper perspective."  But the very manner in which the CBI sought to furnish evidence at various times during the trial might have led the judge to his conclusions.  

One mystery remains over why the agency filed a petition in the court as late as April 2015, when the trial was at an advanced stage, asking it to take on record "fresh certified copies" of 15,000 pages of documents that it had already previously exhibited in court as evidence.

The CBI said it was doing so to "rectify" objections raised by the defence. That perhaps also made it apparent to the judge that the CBI itself was well aware of the deficiencies in its case, at least at that point of time, and was trying to fix it four years after the trial had begun.

Rejecting the CBI's plea on December 22, 2015, the court noted in its order that the CBI's application was "vague and contradictory" on why it wanted to bring the documents on record again.    

"If 15,000 pages of documents were suffering from deficiency regarding proper certification, that itself is a comment on the party trying to place them on record. Deficiency in such a large number of documents is not a simple defect which can be cured or allowed to be cured. It goes to the root of the matter, and if it is really so, curing of defects would certainly prejudice the accused," the court said.

Nor was that the first time that the CBI had come to court with new evidences in the course of the trial.

On November 19, 2014, the court allowed CBI to call five new prosecution witnesses and produce additional documents for their examination.  The court told the CBI, however, that it should stop doing that, saying that "frequent and fragmentary" filing of documents do cause "anxiety and uncertainty in a trial, if not prejudice to the accused."

"In this case, prosecution has been allowed to file documents 14 times. The quest for truth cannot become a lifelong activity, and if it is so, no criminal trial would ever come to an end. The case has been under investigation since August 21, 2009 and since then the prosecution has been collecting material.   This is sufficient time for any investigation to be completed," the court said.

It's a matter of record that there were irregularities in the allocation of 122 2G licences. Otherwise, the Supreme Court would not have cancelled them, calling the whole process "unconstitutional and arbitrary."  

But the charge that Raja deliberately flouted rules to favour Swan Telecom, Unitech Wireless and Reliance Communications in lieu of a Rs 200 crore bribe was left to be proved by the prosecution before the trial court.

"There is no material on record to show that Raja was the motherlode of conspiracy in the instant case. There is also no evidence of his no-holds-barred immersion in any wrongdoing, conspiracy or corruption," the judge said, concluding the trial.

Based on the evidences placed on record, the court noted that many facts recorded in the charge sheet are factually incorrect, "like Finance Secretary strongly recommending revision of the entry fee, deletion of a clause of draft letter of intent (LoI) by Raja, recommendations of TRAI for revision of entry fee, etc."

The court also noted that the case was based on "some oral statements" made by the prosecution witnesses during the investigation. Worse, these witnesses did not own up to the statements they had made to the CBI during investigation in court.    

"If statements were made orally by the witnesses, the same were contrary to the official record and thus not acceptable in law," the Court said, observing that the prosecution failed to prove that the transfer of Rs 200 crore to Kalignar TV was the "proceeds of crime (bribe)" for Raja. Accused acquitted, CBI 'guilty'. Case dismissed.