The CBI on Monday moved a designated special court for slapping the fresh charge of breach of trust by public servants against former Telecom Minister A Raja and two others in the 2G spectrum allocation case.
 
Special Public Prosecutor U U Lalit filed anapplication before Special CBI Judge O P Saini, saying a case of criminal breach of trust under Section 409 of the Indian Penal Code is "certainly made out" against Raja, his former private secretary R K Chandolia and former telecom secretary Siddharth Behura.
 
The CBI plea said besides Raja and two former officials, all others, including DMK MP Kanimozhi and three telecom firms should be charged under section 409 (criminal breach) read with 120 B (criminal conspiracy) of the IPC.
 
"It is submitted that accused 1, 2, and 3 (Raja, Behura and Chandolia) were public servants having a dominion over valuable 2G spectrum in their respective capacities as public servants," said the CBI application.
 
"The said accused public servants in pursuance of conspiracy with other accused dishonestly disposed of the valuable 2G spectrum illegally and in violation of the existing policies and the eligibility criterion in order to confer wrongful gain on accused no. 4 (Swan Telecom promoter Shahid Usman Balwa), 5 (Vinod Goenka), 6 (Swan Telecom), 7 (MD of Unitech Sanjay Chandra) and 8 (Unitech Wireless Tamil Nadu Ltd)," the CBI told the court.
 
"Thus, accused Raja, Behura and Chandolia have committed an offence punishable under section 409 IPC and all other accused have committed an offence punishable under section 409 read with section 120 B IPC. With the cognisance of this court (they) should be charged accordingly," the application said.

The CBI, in its plea, prayed that "a case of framing of charge under section 409 IPC is certainly made out.
 
"It is humbly prayed that a charge under section 409 IPC be framed against accused Raja, Behura and Chandolia and charge under section 409 read with 120 B IPC framed against all other accused in addition to the charges already mentioned in the charge sheets filed before this court," the agency said.
 
Section 409 IPC carries a maximum punishment of imprisonment for life or imprisonment for a term which may extend upto ten years.
 
The CBI, in its two charge sheets against the accused, have booked them for the offences punishable under section 120B, 420, 468 and 471 IPC besides various provisions of the Prevention of Corruption Act.
 
The defence counsel, however, opposed the CBI''s plea saying, "They just want to delay the proceedings of framing of charges against the accused."
 
Special Public Prosecutor Lalit submitted the application to the court for slapping fresh charges against 2G scam accused while arguing on a Law ministry report which said a firm should have more than 10 percent stakes in another for being termed its associate, a plea taken by 2G scam accused Reliance Telecom and Swan Telecom.
 
Law Secretary D R Meena, in his report to DoT, had said the term "associate" could be determined only by applying the "share-holding" test between telecom firms.

"It is a common mistake to confuse a mere 'association' with a definition of an 'associate company'. Companies may have common interests, common business strategies, financial dealings, business pacts and understandings. It is common knowledge that in the telecom sector, several companies enter into business arrangements for technical support and strategies like sharing of towers.
 
"To that extent, they certainly have an 'association' but by no means they can be termed as being 'associates' of one another on that ground. The true test, therefore, is to apply the shareholding test," the report said.
     
The CBI has been alleging that Swan Telecom was an associate firm of Reliance Telecom (RTL) created to circumvent the then guidelines of DoT which debarred existing CDMA players from venturing into GSM segment.
 
RTL and Swan Telecom, alleged beneficiaries of the scam, have been taking the defence that they were not "associate" firms as RTL's stake in Swan Telecom was below 10 percent, as mandated under the guidelines for the Unified Access Service (UAS) Licenses.
 
Thus, the Union law ministry's report has virtually supported the two beneficiary firms' stand.