Reliance ADAG Chairman Anil Ambani and his wife Tina Ambani were today directed to appear as prosecution witnesses in the 2G spectrum case by a Delhi court which allowed CBI's plea that their testimony may throw light on alleged investment of over Rs 990 crores by his group companies in Swan Telecom.
The court said CBI's plea to summon Anil Ambani, Tina and 11 others as prosecution witnesses was essential for arriving at a just decision in the case.
Special CBI Judge O P Saini said testimony of Anil and Tina is required to prove the facts "pertaining to incorporation of shell companies as some of the witnesses examined earlier have not been able to do so."
The court also noted that both Anil and Tina were holding responsible positions in Reliance ADA group and the "shell companies" and their testimonies cannot be said to be totally unnecessary or unconnected with the case.
"Both these witnesses, that is, Anil D Ambani and Tina A Ambani are holding responsible positions in Reliance ADA group and the shell companies and investments/divestments and applications of Swan Capital (P) Limited/Swan Telecom (P) Limited for UAS Licences and its transfer to DB Group pertain to realm to which these two witnesses are supposed to be acquainted with.
"As such, their examination cannot said to be totally unnecessary or unconnected with the case. Rather it may help in reaching the truth and just decision of the case," it said.
The judge said after going through the facts pertaining to incorporation of shell companies and investment or divestment made by the companies in detail, "I also find that witnesses already examined have failed to prove most of these facts for various reasons."
The court also said that it "do not wish to say anything more on the examination of earlier witnesses as this may amount to premature interpretation of the evidence."
"In view of the above observations, I find that the examination of these witnesses is essential for the just decision of the case. Accordingly, application is allowed and the prosecution (CBI) is directed to summon these witnesses for examination," the judge said.
Later, outside the courtroom, an advocate for some of the accused persons, said that an appeal would be filed against this order.
The court dismissed the contentions of the counsel for the accused persons that CBI's plea "suffers from the vice of delay" saying that the process of examination of prosecution witnesses is still underway.
"I find that the examination of prosecution witnesses is still going on, on a day-to-day basis, and as many as 133 witnesses, (evidence) running into about 3650 pages, have been examined till date.
"As such, the (CBI's) application has been filed during the process of taking of prosecution evidence itself and considering the complex nature of the case, the application does not seem to suffer from any vice of delay," it said.
Referring to the arguments advanced by the counsel for the accused, the court said the CBI's plea cannot be denied on the ground that it amounts to filling up lacunae or loopholes in the case.
"However, as mentioned earlier, all the witnesses pertain to the documents/facts already on record. When the documents/ facts are already on record, it does not amount to any lacunae or fundamental defect in the case.
The judge said that even if there are "some mistakes" on CBI's part, the agency is not precluded from rectifying it.
"However, even if there is some mistake on the part of the prosecution for any reason, including ignorance, negligence or even deliberate, it is not precluded from rectifying the mistake when the documents are already on record.
"It does not amount to either filling up the lacunae/ loopholes or correction of mistakes, but is simply to put up the record straight as most of the documents are already on record," the special judge said.
The court also said that the witnesses, who are sought to be examined by the CBI, "mostly pertain to documents already on record or the documents which have been produced consequent to the order dated December 19, 2012 passed by this court under section 91 of CrPC on the prayer of prosecution..."
"As such, it cannot be said that the non-examination of the witnesses under section 161 CrPC (examination of witnesses by police) would cause any prejudice, what to talk of grave prejudice, to the accused persons. Furthermore, it is not necessary that in every case, statement of a witness must be recorded under section 161 CrPC," it said.
The court also rejected the contentions of the counsel for the accused that the CBI was indulging in a fishing and roving inquiry by summoning witnesses again and again.
"...When documents are already in existence, proof of such documents cannot be termed as fishing and roving inquiry. As such, submission is without merit," it said.
The judge said there may be situations where probe agency might not record the statements of witnesses either "due to ignorance, negligence or even deliberately" but their examination cannot be precluded.
"If such a contention is accepted, this may lead to miscarriage of justice in certain cases as the statements may not be recorded by the investigator even deliberately or due to reasons beyond his control.
"....If the examination of a witness is necessary in the interest of justice, then the court is under obligation to examine him, even if no statement of his was recorded under section 161 CrPC or his name does not find mention in the list of witnesses appended to the charge sheet," the judge said.
It said if these witnesses are not examined, the December 19, 2012 order passed by the court would stand "negated" as documents directed to be produced through that order would not be proved as per the law.
"As such, it is apparent that all 13 witnesses are relevant to the case. I may say that their relevancy is writ large on the face of the record," it said.
The court rejected the defence contention that these witnesses would prove facts which pertains to the period prior to the alleged conspiracy.
These facts, which may not have been taken on board initially, "may become relevant subsequently as the foundational facts to the conspiracy. The submission, as such, is without merit," it said.
It agreed with CBI's submission that examination of these witnesses is relevant and necessary for the just decision of the case and dismissed the defence counsel's submission that the plea has been filed to misuse the process of the court, to embarrass and harass some of the witnesses, particularly Anil and Tina Ambani.
Apart from Anil and Tina, the judge has allowed CBI to summon 11 other witnesses, including SBI officials Balraj Singh and Rajiv Prakash, Rajan Chheda and Sumit Choithani of HDFC Bank, who are required to prove the documents produced by the banks following the December 19, 2012 order.
Besides them, Vijay Verma, senior scientific officer of CFSL, has been called as witness to prove the signatures of Reliance ADAG top executives -- Gautam Doshi, Surendra Pipara and Hari Nair who are facing trial in the case.
The court has also recalled as witness ICICI Bank's Devendra Chandavarkar, who has already been examined earlier, to prove the alleged transfer of over Rs 990 crore by or through various entities.
"By no stretch of imagination these witnesses can be called unnecessary, unconnected or outlandish to the case," it said.
Deepak R Handa, senior scientific officer of CFSL, Yogesh Sharma, President (Finance) of Anant Raj Group of Industries, and Anita Gokhale and Kamalkant Gupta, both of Reliance Energy Limited are also allowed by the court to be summoned as witnesses as they are required to prove documents already on record. The court has also agreed to recall witness P L Malik, Deputy RoC, Delhi and Haryana.
The CBI had earlier sought to make 17 persons, including Anil and Tina, as witnesses in the case but during the arguments, it had told the court that the agency was dropping four names.