I.

QUESTION OF LAW

1. I may be permitted to begin by reading two paragraphs of the impugned Order [at SLP Vol. I p. 63 at para 66 r/w para 69 at p. 65 ]. 2. The two allegations I made u/s 311 Cr. PC was held by the Learned Special Judge to be prima facie supported by evidence led, are: First, that Mr. Chidambaram came to an agreement with A. Raja, to concur that the spectrum licence price be fixed at a low price of Rs. 1651 crores, discovered in 2001. It had been brought to his notice by MoF officials several times, at least since 22.11.07, that this price was a very low price. He was also apprised of DoTs own calculation that spectrum licence price in 2008 worked out to about Rs. 8137 crores, far above Rs. 1651 crores. Second, at least two undeserving recipients of the licence, Swan and Unitech, which were real estate companies, obtained a huge pecuniary advantage by selling equity in the name of share dilution, to two foreign telecom companies Etisalat and Telenor, thereby in effect earned several multiples equivalent of what they paid as entry fee to Government. This Mr. Chidambaram enabled by coming to an agreement with A. Raja to permit the acquisition by two black-listed foreign companies thereby caused defacto spectrum transfer even before roll out. This was neither in the public interest or national security interest. 3. These two allegations find support in the judgment of this Honble Court [(2012) 1 SCC 1] wherein it was held that spectrum was virtually gifted away [para 91. P.58] since the spectrum licence price determined was at a throw-way price. 4. This Honble Court further held [para 91, p. 58, op.cit.,] that some of the beneficiaries of this licence allotment soon after offloaded their stakes to others in the name of transfer of equity or infusion of fresh capital by foreign companies, and thereby made huge profits read as pecuniary benefits. 5. Had auction been done, this Honble Court observed, the nation would have been enriched by many thousand crores[Ibid]. 6. This judgment leads to the inference that the said two allegations prima facie the aforesaid decisions were contrary to the public interest which was also an averment of this petitioner [para 5, p.46].

7. Accordingly, this Honble Court decided that all the allotment of 122 licences be cancelled as illegal and the offloading of shares as against public interest, and also imposed a fine on Swan and Unitech [para102 (i)& (v), p. 63]. 8. Mr. Chidambaram aware of the huge revenue accrual of government that would have to be foregone by not pricing spectrum at prevailing competitive prices, since his Ministry senior officials had kept him apprised of it since 22.11.07. 9. Even the DoT informed the Finance Ministry [Vol. II p.114 at 129] that since 2003 the price of spectrum per mhz had multiplied 3.5 times. 10. Mr. Chidambaram was bound by oath of office to safeguard government finances and could have easily done so by invoking the Transaction of Business Rules framed under Article 77 of the Constitution. 11. This implies, prima facie, that he deliberately chose not to safeguard the nations financial resources or defend the public interest, thereby cause a huge loss of revenue to the nation.. 12. Therefore, as Counsel conducting my own Complaint Case, I after my Section 311 Cr. PC statement on oath before the Learned Special Judge, I submitted that it was prima facie proved that the offence u/s Section 13(1)(d)(iii) of the PC Act, was committed by Mr. Chidambaram, since the two required ingredients of the offence were present, i.e., as a public servant, he obtained pecuniary benefits for Swan, Unitech and others, which was without any public interest. 13. And hence my plea for issue of process u/s 204, or postpone issue of process and order u/s 202 an inquiry. 14. The Learned Special Judge thereafter ought to have proceeded according to the guidelines succinctly laid down by this Honble Court [in (2010) 7 SCC 578 at 585-6 paras 16-21] for issue of process u/s 204 or for an inquiry u/s 202 Cr.PC. 15. Instead, the Learned Special Judge dismissed my plea u/s 203, because I produced no evidence to prima facie establish mens rea as an ingredient or prove that Mr. Chidambaram had a criminal intent [paras 69-70]. 16. The Learned Judge, furthermore, did not at all consider the question of postponement of process for further investigation u/s 202 of the Cr.PC.

17. The question of law thus is as follows: Is mens rea an essential ingredient for an offence to have been committed u/s 13(1)(d)(iii) of PC Act? 18. With Your Lordships permission, I shall now read from the relevant parts of impugned Order [Vol. I, starting at p. 36, paras. 47-49; p. 60, para 59; p.61, paras 60-61; p. 62, para 63 which is irrelevant for Section 13(1)(d)(iii) of the PC Act; p. 63, para 66; p. 64-65, paras 67-69; p. 65, para 69]. 19. A bare reading of Section 13 is as follows. 20. Section 13(1)(d)(iii) was introduced as a new Section in the 1988 Act after repeal of the 1947 Act, and is significant in the difference in its wording from the other sub-sections of Section 13 of the PC Act. viz., (i) & (ii), in terms of the stated ingredients of the offence of criminal misconduct. 21. Comparing the two sub sections (i) and (ii) with sub-section (iii), brings out that in the former two sub sections, the adverb qualifies the verb obtains by by corrupt and illegal means and by abusing his position respectively, and in (iii) the adverb is without any public interest as the ingredient of criminal misconduct. 22. That is, the offence u/s 13(1)(d)(iii) of the PC Act has two ingredients: a public servant is said to commit the offence if he obtains for any person [i] any pecuniary advantage [ii] without any public interest. 23. A bare reading thus of Section 13(1)(d)(iii) shows that mens rea or criminal intent is not an essential ingredient in Section. It was thus a clear intention of Parliament to exclude mens rea or criminal intent. 24. Essentiality of mens rea ingredient in any criminal offence, whether under IPC or under other enacted statutes, was gone into in a number of judgments of this Honble Court. 25. On this subject, of whether an enacted statute which provides for criminal punishment for special offences such as corruption, requires mens rea, I cite: (1964) 6 SCR 594 at 610; (1965) 1 SCR 123 at 145; (1978) 1 SCR 338 at 351-52. 26. The ratio of these judgments thus is that the statute enumerating certain criminal offences imposing punishment of incarceration need not require mens rea if instead strict liability is enumerated in the statute itself.

27. This question of mens rea u/s 13(1)(d)(iii) also arose before a Division Bench of the Delhi High Court, squarely in Runu Ghosh vs. CBI , wherein the CBI had argued what I am arguing here today. 28. The Honourable Bench decided on 21.12.11 in CRL. A. 482 of 2002, viz., six weeks before the impugned Order of the Special Court. This is pending now in this Honble Court in SLP 24&25 of 2012. Final hearing listed on 7/8/12 for CBI counter arguments]. 29. It was held therein [para. 73] that: the conclusion this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d)(iii). It would be sufficient 30. All the judgments cited by Learned Judge in his Order are of murder/ assassination cases at the stage of conviction and not at the prima facie threshold. 31. In other words, citing Section 13(1) (d) (iii), I have shown prima facie that the two ingredients of the offence, obtains and public interest, are in the said decisions. II. CONCLUSION 32. It may thus be inferred that the Learned Trial Court Special Judge failed to appreciate Parliaments intention, and thus wrongly dismissed my plea under Section 203 of the Cr.PC, erroneously holding that my complaint lacked prima facie evidence of criminality or mens rea. 33. The Learned Special Judge ought to have summoned Mr. Chidambaram as an accused u/s 204 of the Cr.PC, or at the very least, postponed the issue of process and ordered a CBI investigation u/s 202 of the Cr. PC. 34. I submit that if the Learned Special Judges impugned Order stands, it could vitiate the trial. This Honble Court has propounded the Doctrine of Parity [in (2007 5 SCC 403 at 411 para 23]. 35. Invoking that Doctrine, if Raja is charged, so too prima facie must be similarly placed Mr. Chidambaram. 36. My prayer is in para 21, page 85 of the SLP. 37. My prayer in the Trial Court is at p. 38-39, para 21. 38. Your Lordships may please direct the Learned Special Judge to issue process and summon Mr. Chidambaram as an accused.