Sanction For Prosecution Of Public Servant Lattest SC Judgement

REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 1193   OF 2012(Arising out of SLP(C) No. 27535 of 2010)Dr. Subramanian Swamy … AppellantversusDr. Manmohan Singh and another … RespondentsJ U D G M E N TG. S. Singhvi, J.1. Leave granted.2. Whether a complaint can be filed by a citizen for prosecutinga public servant for an offence under the Prevention of CorruptionAct, 1988 (for short, ‘the 1988 Act’) and whether the authoritycompetent to sanction prosecution of a public servant for offencesunder the 1988 Act is required to take an appropriate decisionwithin the time specified in clause I(15) of the directions containedin paragraph 58 of the judgment of this Court in Vineet Narain v.Union of India (1998) 1 SCC 226 and the guidelines issued by the1Central Government, Department of Personnel and Training andthe Central Vigilance Commission (CVC) are the question whichrequire consideration in this appeal.3. For the last more than three years, the appellant has beenvigorously pursuing, in public interest, the cases allegedlyinvolving loss of thousands of crores of rupees to the PublicExchequer due to arbitrary and illegal grant of licences at thebehest of Mr. A. Raja (respondent No. 2) who was appointed asMinister for Communication and Information Technology on16.5.2007 by the President on the advice of Dr. Manmohan Singh(respondent No. 1).  After collecting information about the grant oflicences, the appellant made detailed representation dated29.11.2008 to respondent No. 1 to accord sanction forprosecution of respondent No. 2 for offences under the 1988 Act.In his representation, the appellant pointed out that respondentNo. 2 had allotted new licences in 2G mobile services on ‘firstcome, first served’ basis to novice telecom companies, viz., SwanTelecom and Unitech, which was in clear violation of Clause 8 ofthe Guidelines for United Access Services Licence issued by theMinistry of Communication and Information Technology videletter No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and,2thereby, caused loss of over Rs. 50,000 crores to the Government.The appellant gave details of the violation of Clause 8 and pointedout that the two officers, viz., R.J.S. Kushwaha and D. Jha of theDepartment of Telecom, who had opposed the showing of unduefavour to Swan Telecom, were transferred just before the grant oflicences and Bharat Sanchar Nigam Limited (BSNL) which hadnever entered into a roaming agreement with any operator, wasforced to enter into such an agreement with Swan Telecom. Theappellant further pointed out that immediately after acquiring 2Gspectrum licences, Swan Telecom and Unitech sold their stakes toforeign companies, i.e., Etisalat, a telecom operator from UAE andTelenor of Norway respectively and, thereby, made huge profits atthe expense of public revenue. He claimed that by 2G spectrumallocation under respondent No. 2, the Government received onlyone-sixth of what it would have received if it had opted for anauction. The appellant pointed out how respondent No. 2 ignoredthe recommendations of the Telecom Regulatory Authority of India(TRAI) and gave totally unwarranted benefits to the two companiesand thereby caused loss to the Public Exchequer.  Some of theportions of the appellant’s representation are extracted below:3“Clause 8 has been violated as follows: While AnilDhirubhai Ambani Group (ADAG), the promoters ofReliance Communications (R Com), had more than 10per cent stake in Swan Telecom, the figures weremanipulated and showed as 9.99 per cent holding tobeat the said Clause.  The documents available disclosethat on March 2, 2007, when Swan Telecom applied forUnited Access Services Licences, it was owned 100 percent by Reliance Communications and its associatesviz. Reliance Telecom, and by Tiger Trustees Limited,Swan Infonet Services Private Limited, and SwanAdvisory Services Private Limited (see Annexure I).  Atone or the other point of time, employees of ADAG(Himanshu Agarwal, Ashish Karyekar, Paresh Rathod)or its associate companies have been acquiring theshares of Swan Telecom itself.  But still the ADAGmanipulated the holdings in Swan to reduce it to only9.99 per cent.  Ambani has now quietly sold his sharesin Swan to Delphi Investments, a Mauritius basedcompany owned by Ahmed O. Alfi, specializing inautomobile spare parts.  In turn,  Swan has sold 45%of its shares to UAE’s Emirates Telecom Corporation(Etisalat) for Rs.9000 crores!  All this is highlysuspicious and not normal business transactions.Swan company got 60% of the 22 Telecom licencedareas at a throw away price of Rs.1650 crores, when itwas worth Rs.60,000 crores total.Room has operations in the same circles wherethe application for Swan Telecom was filed.  Therefore,under Clause 8 of the Guidelines, Swan should nothave been allotted spectrum by the TelecommunicationMinistry.  But the company did get it on Minister’sdirection, which is an undue favour from him (Raja).There was obviously a quid pro quo which only a CBIenquiry can reveal, after an FIR is registered.  There isno need for a P/E, because the CVC has already donethe preliminary enquiry.Quite surprisingly, the 2G spectrum licences werepriced at 2001 levels to benefit these private players.That was when there were only 4 million cellphone4subscribers; now it is 350 million.  Hence 2001 price isnot applicable today.

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