Tapes suggest prosecutor, accused and star witness colluded to vitiate SC directions to CBI

The exposure of an apparent conspiracy between the CBI prosecutor in the 2G scam investigation, A.K. Singh, and the accused Unitech Managing Director, Sanjay Chandra, could have grave consequences since it reveals a deliberate attempt to pull the wool over the Supreme Court’s eyes under whose supervision the entire investigation and prosecution has been occurring since December 16, 2010.

The leaked conversation leads the matter beyond the prosecutor and accused to involve star prosecution witness A.K. Srivastav, who was otherwise liable to face a jail term, along with the former Telecom Minister, A. Raja, the former DoT Secretary, S. Behura, and the former private secretary to Mr Raja, R.K. Chandolia.

The recordings suggest that Mr. Singh was colluding to help Mr. Chandra by not only discussing the CBI’s legal strategy but in fact overruling internal instructions on what questions to ask, pre-deciding their sequence to suit the accused and on whether to call B.B. Singh, DDG (Licence Fee) of the DoT’s Finance Division, for cross-questioning, versus A.K. Srivastav, DDG (Access Services). It is clear from the taped conversation that Mr. Singh and Mr. Chandra believe that using Mr. Srivastav’s testimony would help destroy the prosecution’s own case in three stages, including one that relates to Unitech obtaining licences and spectrum in spite of being ineligible.

The CAG, in its report of December 16, 2010, stated that 85 of the 122 licences granted to 13 companies by the DoT were ineligible. For Unitech, it detailed in pages 35-41, the manner in which the company had provided “false” and “fictitious” certificates on authorised share capital and misrepresented facts. The CAG said: “Their conditional registration by the ROC was a fraudulent act of these 6 companies with mala fide intention of obtaining the UAS licences for 20 service areas by misleading DoT.”

Slamming DoT officials as well, the CAG wrote: “It would thus appear that the DoT miserably failed to do the necessary due diligence in the examination of the applications of these applicants though they took more than 3-9 months to process these applications as against a prescribed period of 30 days.” It was Mr. Srivastav and his team which, while rejecting roughly 100 applications, certified these applications for grant of LoIs, overriding internal written warnings of the finance division on page 28 N of File No: 20-100/2007-AS-I.

SC direction vitiated

The Supreme Court, after hearing the PIL, which had forced the CBI to finally act in November 2010, leading to the arrest of Mr. Raja in February 2011, had specifically directed the CBI to investigate the issue of “ineligible applicants,” who fraudulently accessed licences.

The court, taking cognizance of the CAG report, also directed investigation against DoT officials involved in grant of licences to ineligible firms. It said: “The CBI shall conduct a thorough investigation into various issues highlighted in the report of the CVC which was forwarded to Director, CBI, vide letter dated 12-10-2009 and in the report of the CAG who have prima facie found serious irregularities in the grant of licences to 122 applicants, majority of whom are said to be ineligible, the blatant violation of terms and conditions of licence and huge loss to public exchequer running into several thousand crores. CBI should also probe how new licences were granted to large number of ineligible applicants and who was responsible for the same and why the TRAI and DoT did not take action against those licensees who sold their stake/equities for many thousand crores and also those who failed to fulfil rollout obligations and comply with other conditions of licence.”

This meant that the CBI should have indicted Mr. Srivastav and members of the AS cell. However, instead, the CBI turned him into the star government witness, closely mirroring an approver. The conspiracy of the quid pro quo, uncovered by the tapes, reveals that the testimony of the government witness was to be used to acquit a key accused with the help of a complicit prosecutor — who was focussed on what he would get paid if he was representing the corporates instead of the government. Mr. Chandra’s acquittal of charges of obtaining licences on ineligible applications would have collapsed the case while additionally exonerating DoT officials of charges of collusion.

CBI-Srivastav-Chandra collude

An investigation into the case files by The Hindu shows that Mr. Srivastav had bypassed written warnings by Mr. B. B. Singh, DDG (LF), whose name also appears in the tapes, that “accordingly all service areas licence equity required is Rs.138 crores and not ten crores as per the UASL guidelines 2005.” On January 7, 2008, Mr. Srivastav, ignoring this noting and the knowledge that several companies, especially Unitech, did not meet the criteria on the date of application i.e. September 24, 2007 (as was later disclosed by CAG), processed the file leading to grant of 122 LoIs, which included 22 granted to Unitech’s eight different companies. (See table).

The CAG, which discovered the fraud, said of Unitech in its December 16, 2010 audit report: “Eight applicants belonging to Unitech Group (Brand name Uninor) had been incorporated in August-September 2007 with an authorised share capital of 5 lakh each. All these eight companies passed the special resolutions for increase in the authorised share capital between 2 PM to 5 PM on 20 September 2007 in the extra-ordinary general meetings of the respective companies and deposited the requisite stamp duties on 3 October 2007 for increase in the authorised share capital. After they submitted the requisite applications along with the proof of payment of stamp duties on 5 October 2007, the certificate of the registration of the increase in the authorised share capital was issued by the ROC only on 8/11 October 2007. Thus the claim of the higher paid up capital of these companies on the date of submission i.e. 24 September and the supporting certificates of the company secretaries of these companies submitted along with their applications was false and fictitious.” The conspiracy was hatched to avoid prosecution of Mr. Chandra and DoT officials relating to this paragraph read with the SC directions of December 2010.

The conspiracy

In effect, an independent investigation and prosecution should have been launched against Mr. Srivastav and his officers. However, the CBI instead converted him into a prosecution witness. The CBI prosecutor is now using that favour to have him give statements which, according to Mr.A.K. Singh, is the only one that “will matter.” So despite contrary reports by officers of ROC (the leaked tape mentions one Mr. Kambuj), the case was to be destroyed using Mr. Srivastav’s testimony. Mr. Singh even cited a Supreme Court judgement to buttress this case in the alleged tele-conversation with Mr. Chandra.

The apparent conspiracy as recorded on tape appears to be an attempt to circumvent explicit directions of the Supreme Court, since the main accused within the DoT — Mr. Srivastav — has not been charged for processing 85 ineligible applications — including 22 of Unitech. And now, according to the tapes, the prosecutor, the prosecution witness and the accused are doing one another favours to deliver weak, pre-planned and favourable testimonies to dilute and eventually collapse the case which helps all parties, and most of all the government whose reputation is at stake. Since converting Mr. Srivastav into a prosecution witness rather than keeping him as a key accused remains within the discretionary powers of the CBI, it becomes clear as to why prosecutor Mr. Singh and the accused Mr. Chandra have such confidence in the favourable testimony of Mr. Srivastav in this sensitive case.