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CBI collusion: Is it back to square one for 2G trial?

Has the Central Bureau of Investigation’s (CBI) case in the 2G scam been compromised by the CNN-IBN expose yesterday which allegedly showed chief prosecutor AK Singh discussing details of the prosecution strategy and approach with one of the main accused, Sanjay Chandra, Managing Director of Unitech?

The expose, which included several audio clips of alleged conversations between Singh and Chandra, is yet to be confirmed by a forensic report, but if it turns out to be authentic, it has serious implications for the CBI case and how it will be prosecuted in future. Among other things, Singh is heard discussing details of witnesses, their depositions, and their impact on the cases.

At the very least, the CBI may have to ask some key witnesses to re-testify, but the courts and the trial judge will also have something to say in this matter. Some delays thus look inevitable.

CBI officials with a copy of the charge sheet in the 2G scam. Reuters.

CBI officials with a copy of the charge sheet in the 2G scam. Reuters.

The CBI is in a flap because the taped conversation between its prosecutor and Sanjay Chandra came to it anonymously on the evening of 6 February. Top officials immediately went into a huddle and AK Singh was summoned. His voice sample was taken, sealed and given to Delhi’s forensic lab along with the tape for examination on the same day. Singh was removed from the conduct of the prosecution, and CBI Director Ranjit Sinha decided to keep the Supreme Court, the Central Vigilance Commission and the law ministry in the loop about the tape.

From 7 February onwards, the CBI undertook a massive exercise to sift through all the relevant depositions made during the 2G trial in the designated court of Special Judge OP Saini.

What the CBI is trying to figure out right now, assuming the recording turns out to be authentic, is whether Singh’s suspected collusion with Sanjay Chandra will damage the trial in any way?

The initial assessment is that the damage will be limited, since the Special Public Prosecutor in this case, Uday U Lalit, was directly appointed by the Supreme Court.

“None other than the Supreme Court had anticipated such happenings and that’s why it had appointed Uday U Lalit, a senior Supreme Court lawyer, as Special Public Prosecutor in the 2G case despite strong protests from the Central Government. AK Singh was only one of the four lawyers assisting Lalit in the trial. And CBI officials were directly dealing with Lalit,’’ a senior CBI official told Firstpost, requesting anonymity.

At the time of Lalit’s appointment, Attorney General Goolam Vahanvati had strongly opposed the court’s move to appoint a Special Prosecutor since this was the government's prerogative.

The Supreme Court was told that the accused telecom companies had already retained eminent lawyers and senior advocates – Harish Salve for Tata Teleservices, Datacom, Etisalat and Allianz Infratech, CA Sundaram for Unitech, former Additional Solicitor General Vikas Singh for Sistema Shyam Teleservices, CS Vaidyanathan for Idea Cellular, senior advocate Gopal Jain for Vodafone Essar, Dayan Krishnan for South Korea wireless provider SK Telecom Ltd, veteran advocate Mukul Rohatgi and Sidharth Luthra for Shahid Balwa, Soli Sorabjee, Rakesh Dwivedi and PS Narasimhan for Telecom Regulatory Authority of India (Trai), FS Nariman for the Cellular Operators’ Association of India (COAI) and Indira Jaisingh and Vahanvati for DoT.

At that time, Lalit was representing several clients, including former Karnataka Chief Minister BS Yeddyurappa and Suresh Kalmadi, in cases filed by the CBI. But in the given circumstances, the Supreme Court found that Lalit was the best choice as CBI’s Special Public Prosecutor. And the CBI then nominated AK Singh as its advocate to assist Lalit in the trial. Lalit had also picked three other lawyers to form his team.

The anonymous tapes reveal two things, assuming they are authenticated: that AK Singh may have been subtly manipulating CBI’s key witness, Department of Telecom (DoT) official (now retired) AK Srivastava, in favour of the accused.

And Singh was manipulating witnesses and documents in such a way as to suggest that DoT had only one guideline (first-come-first-served) for issuing telecom licences, which it could interpret in different ways. Thus what Raja did was not criminal since the guideline was flexible, and he did not conspire with Shahid Balwa and Sanjay Chandra.

The tapes also suggest that Singh had become a “self-appointed advisor”’ for Balwa, proprietor of DB Realty. “Woh khud ke liye bhi phansi ka fanda tayaar kar raha hai aur doosron ko bhi maarega. Use hazaar baar samjhaya hai par pata nahin use kaya akal hai!’’ (He – Balwa - is preparing a noose for himself and he will end up destroying others’ cases. I have told him thousand times, but he has no brains.)

The key thing to watch is how the CBI and the Special Court proceed following the tape disclosures.

Since 90 of the 125 witnesses have already been summoned so far, the CBI’s legal department is examining each deposition under the strict supervision of senior officials. The CBI believes that the damage, if any, can be contained at this point of time by re-summoning the witnesses given the special circumstances arising out of Singh’s alleged collusion with the accused.

The forensic report to confirm whether the voices of Singh and Sanjay Chandra are real will come out in 10-15 days. Singh faces immediate suspension if the report confirms his voice. He faces major departmental action after the completion of the preliminary enquiry.

If the enquiry finds any criminality involved, an FIR is also likely to be filed against Singh, Sanjay Chandra and others involved in this case.

So far, the CBI feels, AK Srivastava’s deposition was on expected lines. He had made a statement running into 10 pages and he has not backed out.

During his deposition, Srivastava, who retired as Deputy Director General (Access Service) from DoT in 2007, said: “On 24 September 2007, when about 167 applications were already received, RK Chandolia (A Raja’s Secretary) asked me whether applications of Unitech group have been received. I enquired from dealing section and replied back to him that applications of Unitech group have not been received in the action till then. He (Mr Chandolia) told me that applications of Unitech group will be submitted to DoT today and thereafter I should stop receiving further Unified Access Services Licence (UASL) applications.”

Srivastava’s testimony tallies with what the CBI stated in its charge-sheet. “Former Telecom Minister A Raja had in pursuance of a conspiracy to favour telecom firms, Unitech Wireless (Tamil Nadu) Ltd and Swan Telecom, had decided to accept applications filed with DoT till September 25, 2007, only and thus manipulate the first-come-first-served policy.’’

Another key witness and DoT official Shah Nawaj Alam said in his deposition that attempts had been made to issue Letters of Intent for the grant of spectrum and licences to some ineligible telecom firms.

CBI’s star witness and Raja’s former Assistant Private Secretary Asirvatham Achary deposed and testified on the conspiracy angle, stating that Swan’s Shahid Balwa and Unitech’s Sanjay Chandra knew and used to meet Raja from his environment ministry days.

Achary was attached to Raja from October 1999 to October 2008 and he testified that "The big construction projects cleared by Raja as Minister of Environment... included Unitech, DB Realty and other companies. I do not know the procedure for making such clearances as I was not involved in these clearances."

"As far as Unitech is concerned, Sanjay Chandra, and as far as DB Realty is concerned, Shahid Balwa and Vinod Goenka, used to follow up. They used to meet Raja and Chandolia on a regular basis to pursue their cases in the ministry of environment and forests," Achary stated.

The depositions seem to be in order so far and are supporting the CBI’s charge that Raja had conspired with Sanjay Chandra and others to manipulate the ‘cutoff’ date to benefit their respective telecom companies, even when Sanjay Chandra’s Unitech (according to the memorandum submitted by him for telecom licences in 2007) was not eligible. Unitech is alleged to have had prior knowledge of such ill-conceived design of the first-come-first-served process and had been keeping the demand draft ready since October 2007, whereas the list of successful bidders had come out on 10 January 2008.

However, the CBI is not clear beyond reasonable doubt about the damage caused by the CNN-IBN expose. The damage-control exercise is still on.