New Delhi, February 4
A CBI court today dismissed a plea for making Home Minister P Chidambaram a co-accused in the 2G scam case, holding there was no evidence to suggest his involvement in former Telecom Minister A Raja’s criminal conspiracy or that he took bribe, had illegal motive or abused his position as Finance Minister in 2007-08.

“There is material on record” to show that Chidambaram agreed with Raja not to revise the 2G spectrum price in 2008, but there was no evidence that he was “acting malafide in fixing the price of spectrum at the 2001 level,” CBI Special Judge OP Saini ruled while rejecting Janata Party President Subramanian Swamy’s plea.

In a 46-page order, the judge also gave a clean chit to Chidambaram in the matter of allowing Swan Telecom and Unitech Wireless (Tamil Nadu) to dilute their stakes even before rolling out their services and thereby indirectly sell the spectrum to earn “undeserved profit”.

“Non-revision of prices is not an illegal act by itself. The competent authority is always at liberty to decide in its discretion not to revise the prices or fee for any goods or services. The same entry fee/spectrum charges continued even after 2007-08. Same is the case with dilution of equity by a company. It is not per se illegal nor was it prohibited at the relevant time. However, such acts may acquire criminal colour/overtones when done with criminal intent,” Saini held.

Pointing out that Chidambaram was party only to these two decisions, the judge said, “In the absence of any incriminating act on his part, it cannot be said he was prima facie party to the criminal conspiracy. There is no evidence on record that he was acting in pursuit to the criminal conspiracy.”

Explaining the differences in the roles of Chidambaram and the accused in the 2G case, the CBI court said in the case of Raja and others, there was evidence supporting the charges of receipt of bribe and subversion of the established policy and procedure for grant of telecom licences.

“One may be acting innocently and another act may be actuated by criminal intention. Innocuous, inadvertent or innocent acts do not make one party to the conspiracy,” the judge reasoned.

“One cannot be held guilty merely by association with a decision and a decision by itself does not indicate criminality. There must be something more than mere association. Innocent and innocuous acts done in association with others do not make one a partner in crime, unless there is material to indicate otherwise, which is lacking in this case,” the CBI court explained further.

It also clarified that a “decision taken by a public servant does not become criminal for the simple reason that it has caused loss to the public exchequer or resulted in pecuniary advantage to others…It must have the taint of use of corrupt or illegal means or abuse of his official position by the public servant for obtaining pecuniary advantage by him for himself or for any other person or obtaining of pecuniary advantage by him without any public interest.

“There is no material on record to suggest that Mr Chidambaram was acting with such corrupt or illegal motives or was in abuse of his official position, while consenting to the two decisions. There is no evidence that he obtained any pecuniary advantage without any public interest,” it was stated.