2G scam: CBI opposes bail plea of corporate honchos in HC

"It (non-arrest of five accused) may be a colourable exercise of power by the investigating agency but it does not entitle the accused to get bail ipso facto (by default) as a matter of right," senior advocate U U Lalit submitted before Justice Ajit Bharihoke.

The agency, which did not arrest during the probe Swan Telecom Director Vinod Goenka, Unitech Wireless (Tamil Nadu) Ltd Managing Director Sanjay Chandra and three top officials of Reliance ADA Group Gautam Doshi, Surendra Pipara and Hari Nair, opposed their bail plea and attempted to justify the lower court order on the issue.

The corporate accused are cooling their heels in Tihar Jail after their bail plea was dismissed
by the special court here on April 20.

"Now the matter is between the court and the accused who were allowed to enjoy liberty during probe. The court is not supposed to toe the line of investigating agency," Lalit, Supreme Court-appointed special prosecutor, said.

The courts should use their "independent" and "judicious" discretion in deciding bail applications of the accused and not give weightage to decisions of the probe agency which were taken during the investigation.

Rubbishing the claim of top defence lawyers including former Attorney General Soli J Sorabji, Lalit said the so-called legal proposition that the accused be granted bail ipso facto in case they were not arrested earlier would lead to "disastrous" consequences.

To buttress his arguments, Lalit cited various apex court rulings including that of Satyam fraud and Sohrabuddin Sheikh fake encounter killing cases.

"The role of the court begins after filing of chargesheet. By the logic of defence lawyers, no person could be made an accused if police, rightly or wrongly, file a negative probe report (closure report) in a case," the prosecutor said.

Non-arrest of the accused, their co-operation during the probe and no past criminal records, could be a relevant criteria but other factors such as their complicity and gravity of the offence cannot be overlooked, he said.

Besides legal issues, Lalit also dealt with the factual aspects of case by referring to relevant portions of the chargesheet to indicate the role of the accused. The court then posted the matter for further hearing on April 29.

Lalit cited various judgements to drive home the point that the enormity of the offence cannot be measured by the maximum sentence prescribed for the offence, as argued by the defence lawyers.

"White collar crimes eat away the vitals of the economy of the nation as they have a deep-rooted conspiracy and they cannot be termed as lesser offences. The financial health of the country has been completely bartered in this case," he said.

During the advancing of arguments, which continued for two hours, the CBI prosecutor dealt with roles of corporate honchos and also submitted a nine-page list of dates and events to buttress his arguments.

"Tata Teleservices, an eligible company, could not get the license as process of first-come-first-serve (FCFS) policy was applied in such a manner that it became a rat race," Lalit said.

Discussing the role of Sanjay Chandra of Unitech, he said "preferential treatment was given to the eight group firms as R K Chandolia, former personal secretary of Raja, continuously monitored the submission of applications till the accused firm applied for the licenses.""Cut-off date for submission of applications was also fixed as September 25, 2007 in order to accommodate Unitech Group which was received on that day," Lalit said.
The seniority list was reshuffled to accord favour to Unitech which was also given priority over Tata group and other players, he said adding "the application of Unitech Group was never rejected although the firm was ineligible", he said.

"All the benefits and preferential treatment meted out to Unitech was a result of criminal conspiracy between the accused," he said.

Dealing with the role of Vivek Goenka of Swan Telecom, CBI, in the written submission, said he, in conspiracy with A Raja, Shahid Usman Balwa, Sanjay Chandra, caused an estimated loss of Rs 30,984 crores to the state.

On the complicity of Reliance ADAG officials, the prosecutor said they (Gautam Doshi, Surendra Pipara and Hari Nair) created Swan Telecom to bypass the then telecom policy which debarred use of the dual technology.

"They arranged Rs 992 crore, the net worth of Swan Telecom, on behalf of Reliance ADAG under the garb of subscribing to preference shares of the company," he said.

Later, when the DoT policy was changed and the telecom companies were allowed to avail the dual technology, CDMA and GSM, the Reliance officials offloaded its shares and made illegal money, he said.