2G case: CBI cannot be forced to use Law Ministry report

New Delhi, Sep 26 (PTI) Central Bureau of Investigation
(CBI) Monday told a Delhi court that it cannot be forced to
rely on an opinion of the Law Ministry which said a firm
should have more than 10 per cent stake in another for being
termed its associate.
Special Public Prosecutor U U Lalit told CBI Judge O P
Saini that the opinion, which is now a part of the records,
cannot be used as a document of the CBI at the time of framing
of charges against the accused.
"It is true that the document (the report) is there on
record but then who has proved the document? What was the
basis when the opinion was formed and in what capacity,
the opinion was written. It is a subject of investigation.
"In the entire scheme of the CrPC, this report cannot
be accepted as a relied upon document," Lalit said.
"At best, the Law Ministry report can be taken as an
opinion of a department or an official," he said.
He said at this juncture, only three things are to be
considered by the court.
"Firstly, the documents submitted by the prosecution
which are relied upon by it. Secondly, such examination of the
accused as the court considers it necessary and thirdly, the
arguments of prosecution and defence counsel on this matter,"
the prosecutor said.
The court, on September 19, had directed the CBI to file
the Law ministry report.
Reliance Telecom Ltd (RTL) and Swan Telecom Private Ltd
(STPL), an alleged beneficiary of the scam, have been taking
the defence that they were not "associate" firms as RTL's
stake in STPL was below 10 per cent, as mandated under the
guidelines for the Unified Access Service (UAS) Licenses.
The counsel for RTL and its three accused officials said
that the Law ministry report was a crucial document which has
been brought on record following the court order.
"It is clear that accused cannot place documents on
record at the time of framing of charges but have we placed
the report on record? This court has ordered the CBI to place
the report," he said.
Essar Telecom, which allegedly created Loop Telecom as
its front company to get licenses, has taken the same plea.
CBI, on the other hand, has been alleging that STPL was
an associate firm of RTL created to circumvent the then
guidelines of DoT which debarred existing CDMA players from
venturing into GSM segment.
RTL later passed on the control of STPL to promoter and
co-accused Shahid Usman Balwa after the DoT allowed it to
avail the facility of dual technology, the agency had said.
Law Secretary D R Meena, in his report to the DoT, had
said the term "associate" could be determined only by applying
the "share-holding" test between telecos.