BSNL exchange case:Madras High Court sets aside order discharging Maran brothers

Allowing the appeal filed by the CBI, Justice G Jaichandran directed a special CBI court to frame charges and conclude the trial within 12 months from the date of receipt of copy of the order.

Kalanidhi Maran (Express file photo)

CHENNAI:THE Madras High Court on Wednesday set aside an order of a Special Court for CBI cases discharging former Union Minister of Communication and Information Technology Dayanidhi Maran, his brother Kalanidhi Maran of SUN TV network and seven others in the alleged multi-crore BSNL telephone exchange scam case.

The HC held that the Central Bureau of Investigation (CBI) probe had established a prima facie case that Dayanidhi Maran, while functioning as a public servant in the capacity of Union Minister from May 2004 to May 2007, had conspired with the other accused and obtained 764 telephone numbers at his Chennai and Delhi residences under service category without being entitled to it and by violating all procedures and norms. Thereby he had caused an undue loss of `1.79 crore to the government exchequer and undue gain to him, if all the material submitted by CBI were proved, Justice G Jayachandran said.

The judge was allowing a revision petition from the CBI challenging the order dated March 14 last of the XIV Additional Special Judge for CBI cases.The other accused Kalanidhi Maran, (owner of SUN TV), K B Brahmadathan and M P Velusamy, the then Chief General Managers of BSNL, Vedagiri Gowthaman, K S Ravi and S Kannan were also alleged to be part of the criminal conspiracy and to have played crucial roles in obtaining and maintaining these illegal telephone connections. Velusamy also allegedly generated an ante-dated false reply to help Dayanidhi Maran claim that no dues were recoverable from him towards telephone charges, the judge pointed out.

Considering the police report and the documents, the only opinion any judicial mind could form was that there were grounds to presume all the seven accused had committed offences and not otherwise, the judge said, allowing the revision petition and directing the trial court to frame charges and complete the trial within 12 months.

‘Can’t Maran have exchange if DefMin can use flight?’

During closing remarks of their submissions, a senior counsel for the accused said the man who had brought the broadband facility to every corner of the country was now being hunted by CBI for political reasons. The judge pointed out that the records indicated otherwise. “Dayanidhi Maran, by virtue of the office, might have been instrumental for popularising broadband facility. It does not mean that he can claim the privilege of unlimited usage of that facility for him, his brother and his business establishment free of costs,” the judge said.

Another argument of the senior counsel was that while the defence minister was permitted to enjoy exclusive Air Force aircraft for her journey and the Railway minster exclusive saloon for his travel in the train, why could the Telecom Minister not have an exclusive exchange. “To this argument the logical answer could be, “Yes, If law permits.” The corollary will be, if law does not permit, they are liable for prosecution. It is amply shown in this case that law does not permit to have the facilities enjoyed by the accused under service category, hence they are liable for prosecution,” the judge said.

Excerpts from the HC order

The CBI in its chargesheet had said, the facilities given to Dayanidhi Maran were excessive, without authority and not in consonance to the rules and entitlement of a Minister or MP

1. Error, illegality and perversity all could be pointed out in the impugned order of the trial Court. First of all, the crux of the prosecution case as recorded by the trial Court is factually wrong. It is not one phone connection malafidely used by SUN TV. The case of the prosecution is that in violation of Rules/Regulation/Guidelines as seen from the Salary allowance and pension of the Member of Parliament Act, 1954 and the rules made there under several phone connections and add on benefits were given to A-3 and A-7 business establishment illegally
2. As far as A3 [Dayanidhi Maran] is concerned, he has abused his official position to obtain advantage of having telephone connections over and above he is entitled to. He has conspired with the other accused and had obtained excess telephone lines under Service Category at his residence at Delhi, residence at Gopalapuram and residence at Boat Club, Chennai. While conversion of personal number into service category, the approval of Department of Telecommunication (DoT) is required
3. As far as A3 is concerned, he as a Member of Parliament and Minister for Communication and Information Technology was entitled to have 3 landlines and four mobile phones only. Whereas, the material placed before the court indicates that more than three pilot lines were provided to A3. By procuring high end equipment and engaging private operators to lay exclusively lease line to premises of SUN TV, the facility availed from BSNL under the garb of service category had been diverted to SUN TV to exploit commercially
4. Trial court while holding so failed to consider the violations alleged are not procedural to take departmental action. When illegal act which attracts penal action is alleged, departmental action can be in addition to penal action and not a substitute to penal action
5. The trial court had extracted very few portions of the statements and documents selectively and had arbitrarily arrived at a conclusion that the violations pointed out are only matter for departmental enquiry and rest of the material does not disclose any criminality against the accused persons
6. It is also very saddening to note that the trial court, even without canvassing, has discharged A3 on the ground that the prosecution agency has not obtained sanction under Section 197 CrPC to prosecute Maran. The provisions under Section 197 of CrPC is to protect public servants from criminal prosecution for any act done by them in discharge of his official duty which may otherwise attract criminal prosecution. Permitting A3 to have over 3 landlines under Service Category and reserving 10 mobile SIM numbers with fancy numbers for the use of SUN TV without collecting fancy number charge and allotting the same under Service Category is nothing to do with the public duty on the part of A1 and A2 or on the part of A3
7. In respect of including A3, he was not in office while taking cognisance of the offence and the specific charge against him is for abuse of his official position conspiring with other accused and making pecuniary advantage of availing free telephone connections and mobile facility which attract penal provisions
8. This court is fully satisfied that heaps and heaps of material are available to frame charges  against all the accused. None of the reasons given by the court to discharge them is sustainable under law. The trial Court had treated petitions for discharge as a case for appreciating evidence with the decree of proof beyond reasonable doubt. He had totally forgotten the fact that he should only weigh the probability of the case for framing charges