TMI Blog2011 (6) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2G spectrum by the Department of Telecommunications. 3. First charge sheet was filed on 02.04.2011 in the court of Special Judge, Patiala House, New Delhi against 12 accused persons including M/s. Swan Telecom Pvt. Ltd. and its directors Shahid Balwa and Vinod Goenka for the offences punishable under Section 120-B, 420, 468, 471 of IPC and Section 109 read with 420 IPC, as also under Section 13(2) read with 13(1)(d) of P.C. Act, 1988. 4. A supplementary charge sheet was filed in the above mentioned case on 25.04.2011 against five accused persons including the petitioners for offences under Section 120B IPC read with Section 7/11 and 12 of P.C. Act, 1988. 5. Briefly put, case of the prosecution is that earlier to accused A.Raja taking over as Minister for Communications and Information Technology, the departmental policy of DOT regarding grant of Unified Access Services Licence (UASL) was first come first serve subject to eligibility and after the issue of Letter of Intent (LOI) to the successful applicant, he was given sufficient time to comply with the conditions of LOI and deposit of the licence fee. 6. In order to achieve the end of conspiracy, accused R.K. Chando ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change made in LOI by accused A.Raja and suggested that it appears logical to keep the date of applications as date of priority for issue of licence provided the applicant is able to establish that he is eligible on the date of application and is also eligible when the LOI is issued. This note was endorsed by Member(Finance), Telecom Commission and Secretary(Telecom) also suggesting the revision of entry fee for new licences in line with revision of fee for dual technology spectrum as suggested by Ministry of Finance in its letter. Accused A.Raja, however, ignored the advice to keep the date of application as date of priority for issue of licence or to review and enhance the licence fee and this resulted in a loss to the tune of almost of 30000 crores to the State exchequer. 10. That while putting up a note dated 7th January, 2008 for processing UASL application received upto 25th September, 2007, Director (AS-I) reiterated the existing policy and noted, sequence of granting of LOIs/UAS Licence has been maintained till now to the date of respective application for a particular service area. In his note DDG(AS-I) raised the issue of eligibility and clarified that the eligibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 8 of UASL policy guidelines. In order to circumvent the aforesaid ineligibility clause and to cheat the Department, accused Gautam Doshi, Hari Nair and Surendra Pipara in furtherance of the conspiracy created and structured a new company M/s Swan Telecom Pvt. Ltd which applied for UASL Licence on 2nd March, 2007. The above referred accused persons has structured M/s Swan Telecom Pvt. Ltd. in such a manner that its equity holding was shown as 90.1% with M/s Tiger Traders Pvt. Ltd. and 9.9% with M/s Reliance Telecom Ltd. The investigation into holding structures of M/s Tiger Traders Pvt. Ltd. revealed that aforesaid company was actually funded by the Group Companies of M/s Reliance ADA Group. It was revealed that ₹ 3 crores utilized by M/s Tiger Traders Pvt. Ltd. in January 2007 and ₹ 95.51 crores used by said company in March, 2007 to subscribe to majority equity shares of M/s Swan Telecom Pvt. Ltd. was arranged through Group Companies of Reliance ADA Group. Besides that, a sum of ₹ 992 crores which constituted the bulk of networth of M/s Swan Telecom Pvt. Ltd. was also provided by Reliance Telecom Ltd. under the garb of subscribing to preferential shares to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Reliance ADA Group. Accordingly, Reliance ADA Group withdrew its holding from M/s Swan Telecom Pvt. Ltd. and the accused Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd. to the co-accused Shahid Balwa and Vinod Goenka in order to facilitate them to cheat DOT by getting UAS Licence in the name of M/s Swan Telecom Pvt. Ltd. which company till 18th October, 2007 was ineligible for UAS Licence in view of Clause 8 of policy guideline. 15. The original charge sheet also disclose that accused Shahid Balwa and Vinod Goenka through their company M/s. D.B. Infrastructures Pvt. Ltd., a company of Dynamic Balwa Group took over majority stake in Swan Telecom Pvt. Ltd. on 18.10.2007. 16. It is alleged in the supplementary charge sheet that pursuant to the criminal conspiracy, accused A.Raja, the then MOC IT and accused petitioners Sharad Kumar and Kanimozhi Karunanithi were stake holders and/or directors of M/s. Kalaignar T.V. Pvt. Ltd. accepted and received an illegal gratification of ₹ 200 crores in M/s. Kalaignar T.V. Pvt. Ltd. from the co-accused Shahid Balwa and Vinod Goenka from the account of M/s. D.B. Group Companies in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mix Realty, M/s Kusegaon Fruits Vegetables Pvt. Ltd., M/s Cineyug Films Pvt. Ltd.,and M/s Kalaignar TV Pvt. Ltd., claimed to be in nature of loan, no valid agreement was signed between any of the parties and no collaterals/ securities were ensured to secure the alleged loan amounts. Later, after registration of the criminal case vide FIR no. RC DAI 2009 A 0045 dated 21.10.2009 by CBI, and on taking various steps in investigation of the case, M/s Cineyug Films Pvt. Ltd offered some securities to M/s Kusegaon Fruits Vegetables Pvt. Ltd against the above referred unsecured loan of ₹ 200 crores. 20. Investigation has also revealed that in terms of the Share Subscription and Shareholders' Agreement dated 19.12.2008, claimed by accused persons to have been signed between M/s Cineyug Films Pvt. Ltd., M/s Kalaignar TV Pvt. Ltd. and promoters, it was required that the funds transferred till 31.3.2009 be treated as loan if no agreement could be entered regarding the price of equity of M/s Kalaignar TV Pvt. Ltd. However, investigation has revealed that though no such agreement could admittedly be reached between M/s Cineyug Films Pvt. Ltd. and M/s Kalaignar TV Pvt. Ltd., stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness practices. 23. Investigation has also revealed that when accused A Raja (A-1) was contacted by CBI for his examination scheduled on 24.12.2010, M/s Kalaignar TV Pvt. Ltd started refunding the amount of ₹ 200 crores to M/s Dynamix Realty, through M/s Cineyug Films Pvt. Ltd. and M/s Kusegaon Fruits Vegetables Pvt. Ltd. A substantial part of the amount was refunded by it just before and after 02.02.2011, when accused A Raja (A-1) was arrested by CBI in this case. The details of such transfers by M/s Kalaignar TV Pvt. Ltd. to M/s Cineyug Films Pvt. Ltd. are as under:- SI.NO. Date Amount 1. 24.12.2010 ₹ 10 Crore 2. 27.12.2010 ₹ 20 Crore 3. 04.01.2011 ₹ 10 Crore 4. 05.01.2011 ₹ 10 Crore 5. 11.01.2011 ₹ 10 Crore 6. 24.01.2011 ₹ 65 Crore 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (Net after TDS) Gross Amount 20/12/2010 ₹ 12,00,89,041 ₹ 12,19,17,808 29/12/2010 ₹ 7,96,00,000 ₹ 8,00,00,000 03/02/2011 ₹ 4,86,86,849 ₹ 4,89,31,507 Total ₹ 24,83,75,890 ₹ 25,08,49,315 27. Investigation has revealed that M/s Kusegaon Fruits Vegetables Pvt. Ltd, in turn, paid back ₹ 200 crores, with interest @ 7.5% per annum to M/s Dynamix Realty. The details are as under:- SI.NO. Date Amount 1. 23.12.2010 ₹ 12 Crores 2. 29.12.2010 ₹ 10 Crores 3. 30.12.2010 ₹ 20 Crores 4. 31.12.2010 ₹ 7.95 Crores 5. 10.01.2011 ₹ 7.95 Crores 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation has also revealed that accused Ms. Kanimozhi Karunanithi (A-17) was a stakeholder of M/s Kalaignar TV Pvt. Ltd. to the tune of 20% equity and was an active brain behind its operations. She was also widely covered by the Kalaignar Seithigal (News) channel. She also actively pursued with the intermediaries and DMK Hqrs. The matter regarding reappointment of accused A Raja (A-1) as Minister of Communications Information Technology in 2009. PW-103, Sh. Ashirvadam Achary has stated the above facts showing association of accused Sharad Kumar and Kanizmozhi with accused A. Raja regarding the issues of Kalaignar TV. 30. Learned Shri Altaf Ahmed, Sr. Advocate appearing for the petitioners submitted that the petitioners were not arrested during investigation and they appeared in the court of Special Judge pursuant to the summons issued under Section 204 Cr.P.C. Thus, they were not in custody. Learned Sr. counsel further submitted that the liberty of a person is sacrosanct and no court has inherent power to remand an accused to custody, as such, the power has to be exercised in accordance with law. It is submitted that relevant provisions in the Code of Criminal Procedure dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal presence of the accused in court coupled with submission to the jurisdiction and orders of the court. 9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can, be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. 18. In Black's Law Dictionary by Henry Campbell Black, M.A. (Sixth Edn.), the expression custody has been explained in the following manner: .....The term is very elastic and may mean actual imprisonment or physical detention....within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty....Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceeding. 33. It is apparent from the above that the Supreme Court has ascribed a wide meaning to the word custody and it has to be understood in the context of the setting in which it is used and the provisions contained in Section 437 Cr.P.C. which relates to the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest- (a) If either before the issue of summons, or after the issue of the same but before time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or (b) If, at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure ................... .................... 88. Power to take bond for appearance.---When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial 36. Section 87 and 88 Cr.P.C. are incorporated in Chapter VI of the Code of Criminal Procedure meant to deal with the processes to compel appearance and are given in Part D of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused for his release on bail is required to be considered by the Court on the basis of well established principles i.e. the nature of the accusation; the nature of the evidence collected in support of accusation; possibility of the accused interfering with the process of justice and the possibility of the accused fleeing away from justice. 39. Next contention on behalf of the petitioners is that the Special Judge after taking cognizance of the case in exercise of the power to issue process under section 204 CrPC preferred to issue summons for appearance to the petitioners instead of warrants. This imply that the Ld. Special Judge on consideration of the charge sheet found it to be case in which the detention of the petitioners was not necessary. Thus it is contended that the refusal of bail to the petitioners after their appearance in the court amounts to review of the earlier position taken by the Ld. Special Judge, which is not permissible in law as the subordinate court has no power to review its order. Referring to the Judgment of Kerala High Court in Sreekumar Vs. State of Kerala, (2008) 3 KLT 748, Ld. Counsel submitted that if warrant for appearance were issued agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for any court thereafter to turn turtle and remand the accused to custody. Issue of summons by exercise of the discretion under S. 204 CrPC does firmly and eloquently convey that the accused person on appearance shall not be detained unnecessarily if he is wiling and prepared to offer bail. The courts will have to be careful at the state of exercising the discretion under S. 204 CrPC and cannot take parties by surprise when they appear before court in response to an innocuous summons issued by the court. This must be so whether the offence is triable by a Magistrate or not and whether the offence is bailable or not . 41. I find myself unable to agree with the view taken in the aforesaid judgment. Issue of process under Section 204 Cr.P.C. is meant for ensuring the presence of the accused in the court. Issuing summons under Section 204 Cr.P.C., by no means, is an assurance that the accused on appearance in the court shall be granted bail nor it amounts to misleading the accused and preventing him from seeking his legal remedy by moving an application for anticipatory bail in the superior court. Otherwise also, now the petitioners are present before High Court under Section 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shareholders and others have been duped and the corporate credibility of the nation has received a serious setback. We are deliberately refraining from making a detailed observation regarding the conduct of the respondents- accused because the trial is still pending and we do not want the trial to be prejudiced in any manner. 5. Ordinarily this Court would be slow in cancelling the bail already granted by the High Court but in the extraordinary facts and circumstances of these cases, we are of the considered view that the impugned orders passed by the High Court granting bail to the respondents, cannot be sustained in law and the same are accordingly set aside. ........... 7. We are informed that charges have been framed on 25 th October, 2010 and trial is scheduled to commence with effect from 2nd November, 2010. In these circumstances, we deem it appropriate to direct the Trial Court to take up the case on day-to-day basis and conclude the trial of this case as expeditiously as possible, in any event, on or before 31st July, 2011. 46. In a recent judgment in the matter of Prasanta Kumar Sarkar Vs. Ashis Chatterjee Anr., 2010(11) Scale 408, Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument, allegations of prosecution are taken to be correct, then also, the role of the petitioners is distinct from the other co-accused persons, who are directly involved in the alleged conspiracy, particularly when, the petitioners are not the beneficiaries of conspiracy as neither the petitioners nor any of the company with which they are associated have received UAS Licence/Spectrum. It is further contended on behalf of the petitioners that they were neither arrested during investigation nor there is any allegation against them that they have interfered with the process of investigation. They have appeared pursuant to the summons. Therefore, there is no possibility of the petitioners interfering with the investigation process or influencing the witnesses or absconding from law. Thus, learned counsel for the petitioners has strongly urged for admitting them on bail. 49. Bail applications are vehemently opposed by learned Special Prosecutor. He has referred to the charge sheet and the supporting evidence and submitted that there is sufficient prima facie evidence on record to show the complicity of the petitioners in the conspiracy to confer undue advantage upon M/s. Swan Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Technology in May, 2007 and the petitioners parted ways with M/s. Sun T.V. Network in June, 2007 and promoted their own company M/s. Kalaignar T.V. Pvt. Ltd.; (d) that accused A.Raja had close associations with the petitioners and he helped their company to get registration with Information and Technology Department and also to get included in the Bouquet of Sky T.V.; (e) that M/s. Swan Telecom Pvt. Ltd. which is owned by DB Realty Group of Companies offloaded its equity to M/s. ETISALAT Mauritius Ltd. and M/s. Genex Exim Ventures Pvt. Ltd. and in consideration received ₹ 3228 crores and 380 crores respectively on 17.12.2010; (f) that the transfer of the money from DB Realty Group through its group companies Dynamix Realty, M/s. Eversmile Construction Company Pvt. Ltd. and M/s. Conwood Construction Developers Pvt. Ltd. started with effect from 23.12.2008 and it continued till August, 2009; (g) that the bribe money was transferred to M/s. Kalaignar T.V. Pvt. Ltd. in instalments through a circuitous route i.e. via M/s. Kusegaon Fruits Vegetables Pvt. Ltd. and M/s. Cineyug Films Pvt. Ltd.; (h) that ₹ 200 crores was transferred from accounts of above referred DB Realty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be a coincidence and this gives rise to a prima facie involvement that aforesaid methodology was adopted by the petitioners and their co-accused persons with a view to conceal the trail of money from DB Realty Group which owns M/s. Swan Telecom Pvt. Ltd. and M/s. Unitech Group of Companies in the matter of grant of UAS Licences and spectrum have caused a loss of about ₹ 30,000 crores to the State exchequer. The petitioners are in control of M/s. Kalaignar T.V. Pvt. Ltd., as such they are in position of power to influence the witnesses, particularly the employees of their company. They have got strong political connections. Petitioner Kanimozhi Karunanithi belongs to the same political party to which accused A.Raja belongs and the said party is sharing power in the Central Government. Thus, considering the financial and political clout of the petitioners, a possibility cannot be ruled out that if the petitioners are freed at this stage, they would interfere with the investigation or try to influence the witnesses. Thus, at this stage, I do not deem it appropriate to admit the petitioners on bail. 53. Bail applications are dismissed accordingly. 54. Nothing contained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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