Leave to appeal, and the witnesses in dispute
Published 9 October 2026
The CBI's case on appeal is an alleged conspiracy and cheating case. Leave to appeal is a threshold step and not a finding on the merits. (Delhi High Court leave order, 22 March 2024)
On 22 March 2024, the Delhi High Court granted the CBI leave to appeal the acquittal. Its final analysis identified questions about the handling of the queue, witness testimony, claimed associations, entry-fee documents and equity transactions. The court said the material required deeper examination and re-appraisal of the evidence. This was a consequential step because an appeal against an acquittal requires leave before its merits can be heard. But the judgment also set an explicit boundary. Paragraph 269 said the concerns were expressed only to take a prima facie view and that nothing in the order was to be construed as a final opinion. Paragraph 270 referred to an objective satisfaction that a prima facie case required deeper examination, and paragraph 271 said the CBI had made out arguable points. Those words describe the admission threshold, not proof beyond reasonable doubt. It cannot say the High Court convicted Raja, reversed the acquittal on the merits, or judicially confirmed the audit's entire loss estimate. (Delhi High Court leave order, 22 March 2024)
It recorded respondents' arguments defending the trial judge's approach, including the point that a licence-pricing policy benefiting more operators could not be assumed to establish a conspiracy with only selected companies. It recorded arguments that the trial judgment had carefully considered the material, that particular witnesses had changed their accounts and that claimed familiarity was not evidence of a criminal agreement. These are defence submissions, not findings of the High Court; they belong beside the prosecution submissions with the same attribution discipline. The court ultimately allowed the appeal to proceed, but that outcome did not make every prosecution allegation a settled fact or every defence explanation frivolous. (Delhi High Court leave order, 22 March 2024)
The High Court's leave decision recognised the same scale while resisting a full merits determination at the admission stage. It said the re-appreciation, re-appraisal and review of the evidence belonged to the appeal on its merits. Paragraph 245 acknowledged that the presumption of innocence had strengthened in the respondents' favour after acquittal. It identified the trial judge's rejection of prominent prosecution witnesses, including PW60 and PW7, and acceptance of defence witnesses as a central issue for examination. The question was whether that appraisal accorded with the law and the record, not whether the sheer number of witnesses justified a different result. The leave judgment therefore supplies a balanced procedural description: the acquittal was a real merits outcome of a large trial, and the appellate court found arguable concerns about how that outcome had been reached. Neither description cancels the other. The documents establish the size of the process and the specific legal questions raised about it. (Delhi High Court leave order, 22 March 2024)
The High Court's 2024 order took a different preliminary view of the implications of this arrangement. It recorded the CBI's argument that letters were distributed from 3:30 PM and the process took about half an hour, while Swan completed compliance for Mumbai at 4:10 PM and Delhi at 4:11 PM. It also recorded the claim that Unitech, originally twelfth in priority, completed conditions before Tata, originally second. The court said these circumstances required deeper examination. It referred to the trial court's reproduction and subsequent rejection of the prosecution theory concerning altered priority. The order did not decide that every time or asserted rank conclusively established conspiracy. It decided that the treatment of these matters deserved appellate scrutiny. The same operational detail can explain why the appeal was admitted without becoming a final finding against the accused. Keeping the timestamps, the originally claimed priority and the stated threshold together is more informative than saying simply that the High Court saw "irregularities." (Delhi High Court leave order, 22 March 2024)
The 2024 High Court order returned to this tension. It recorded the CBI's argument that the trial judgment had observed departures from the policy but nevertheless rejected the prosecution's attribution of manipulation to Raja. It also identified the distribution and compliance sequence as requiring deeper examination. The admission of the appeal did not establish that past departures made the 2008 procedure lawful or unlawful in every respect. Nor did it decide that an ambiguous baseline excused a later unfair implementation. It opened the opportunity to review how the trial judge had used the earlier practice, testimony and documents to resolve the charged case. The useful detail is the relationship between the baseline rule and the alleged act: which source created priority, which officials applied it, whether they had previously treated it differently and whether the evidence proved a criminal agreement in this instance. The audit and constitutional judgment supply public-law criticism; the trial and appeal supply a disputed evidentiary analysis of criminal responsibility. (Delhi High Court leave order, 22 March 2024)
The High Court's discussion of evidence powers was part of its explanation for admitting the appeal. It referred to the trial judge's role in recording evidence and the power under Section 165 of the Evidence Act to ask questions and seek clarity. The order cited Supreme Court authority saying a judge need not act only as a recorder of what witnesses happen to say and may take a participatory role to elicit necessary material. In paragraph 267, the High Court specifically asked why the trial judge, after repeatedly noting that the prosecution had not given witnesses an opportunity to explain statements, had not used his own power to clarify ambiguity. This was a preliminary concern about the process of appreciation and clarification, not an appellate determination that the missing explanations would necessarily incriminate the accused. It also did not remove the prosecution's burden or shift that burden to the defence. The point was that a court's search for a just decision can include clarifying evidence rather than deciding every ambiguity from counsel's failure alone. This provides a concrete reason for the appeal beyond the vague proposition that another court disliked the acquittal. (Delhi High Court leave order, 22 March 2024)
The leave order also discussed the appellate power to obtain further evidence under Section 391 of the Criminal Procedure Code. It explained that refusing leave would close the route to a merits hearing, while granting leave would allow the appeal to proceed under the statutory framework. That is not a direction in this case that a specified new witness had to be called or a particular document had already been admitted. The court repeatedly said it was not undertaking the full re-appraisal at that stage. Only the threshold permission was decided in the 2024 judgment. Later listing orders, including the July 2026 order, establish scheduling but not the exercise or outcome of those merits powers. (Delhi High Court leave order, 22 March 2024; Delhi High Court order, 28 July 2026)
Aseervatham Achary, identified as PW-7 in the Delhi High Court's Friday, March 22, 2024 order, was a named point of disagreement between the prosecution and defence. The CBI relied on his account of the period when A. Raja held the environment portfolio, before becoming communications minister. As the High Court recorded the prosecution's submission, Achary described meetings with officials of DB Realty and Unitech and environmental clearances for their projects. The CBI argued that the trial court had rejected his evidence for inadequate reasons, including the absence of entries in a visitor register, his political inclinations and the absence of supporting environment-ministry records. Those grounds concerned the credibility and corroboration of a particular witness, not whether the companies had ever applied for telecom licences. The defence opposed that account. Raja's counsel argued that Achary's testimony concerning the relationships had properly been rejected for the reasons in the trial judgment's paragraphs 355-365. The competing positions therefore did not reduce to one side possessing a witness and the other possessing none. They concerned what weight his recollection could bear, what documents should have accompanied it and whether a claim of familiarity supported the charged conspiracy. The leave order preserved both positions before identifying the dispute as a reason for fuller appellate scrutiny. (Delhi High Court, CBI v A. Raja and others, March 22, 2024, paragraphs 11, 41-43 and 259-260)
Two business connections appeared beside the oral account. The prosecution referred to a house rented by R.K. Chandolia to Associated Hotel Private Limited, while the High Court's analysis referred to Raja's alleged association with DB Group through Green House Promoters and Chandolia's alleged connection through Associated Hotel. In paragraph 260, the High Court said the trial court's treatment of those connections, recorded in paragraphs 371 and 1286 of the acquittal judgment, warranted hearing the appeal on its merits. Paragraph 259 also questioned the rejection of the lease-deed evidence for lack of corroboration. The document and the testimony performed different evidentiary jobs: a lease could establish a transaction involving a property, while other evidence would be needed to establish the relevance of that relationship to an agreement to misuse office. The High Court did not use the lease to convict anyone or declare that every commercial relationship was incriminating. It identified an arguable dispute about the trial court's evaluation. Its express restriction in paragraph 269 matters here: the observations were only a prima facie view, not a final opinion. The appeal could examine the association evidence afresh without treating an ordinary business link, standing alone, as the completed proof of the alleged conspiracy. (Delhi High Court, March 22, 2024, paragraphs 12, 259-260 and 269)
The order also recorded a detailed defence challenge to A.K. Srivastava's account of a meeting on January 7, 2008. Counsel for Siddharth Behura argued that Srivastava, PW-60, had introduced that meeting in a later statement after Behura's arrest, and that the alleged meeting was contradicted by K. Sridhara, PW-77, in his evidence. The defence pointed to Ex.PW60/L, arguing that the note did not mention such a meeting or an oral direction to put up a note on the basis later alleged. It relied on Srivastava's testimony recorded in September 2012 and the obligations of official procedure. These were specific objections to timing, consistency and documentary support. They did not establish that an official note was unnecessary or that oral directions could never be proved. Rather, the defence said that a later account supplied a missing link in the prosecution's theory that Behura knew about the change to first come, first served before the relevant file reached him. The CBI's wider position was that official directions and the documentary sequence demonstrated a planned alteration benefiting selected applicants. Reading the parties' positions together shows why the meeting mattered: its significance lay in what a particular official knew, when he knew it and whether he participated in the alleged plan, not simply in whether people in the department spoke to one another. (Delhi High Court, March 22, 2024, paragraphs 65-67 and 19-20)
The cutoff issue supplied another document-specific dispute. The CBI's opening submissions referred to D.S. Mathur, PW-36, Srivastava, PW-60, Raja's defence testimony and Chandolia's defence testimony, together with Ex.PW36/E. In its own preliminary analysis, the High Court referred to Ex.PW36/E1, a note purportedly recorded by Srivastava, and questioned the handling of the proposed October 10, 2007 cutoff and its replacement by October 1. The court contrasted the trial judgment's discussion of Raja's reasons for advancing the cutoff with its statement that Srivastava might himself have suggested October 1. It also referred to Raja's testimony that discussion within the department had led to the view that time until October 1 was sufficient. That set of references shows the dispute's structure. One issue was the date ultimately adopted; another was the author and reason for the change; a further issue was whether that act was connected to an agreement to benefit particular applicants. The leave order contains apparent date inconsistencies in nearby passages, including a reference to January 1, 2007. The High Court's central conclusion was that the treatment of the testimony and notes needed examination, not that the date inconsistency itself proved guilt. (Delhi High Court, March 22, 2024, paragraphs 17-18 and 259-263)
The named finance document in the leave order was PW36/B1, a note recorded by Manju Wadhwan on November 30, 2007. The High Court juxtaposed it with Raja's handwritten note of December 4, describing their positions as contrary. It also recorded the CBI's complaint about the treatment of Nripendra Misra, PW-11, whose evidence concerned the interpretation of the regulator's recommendation on entry fees. The trial court had said there was no material showing that anyone understood the recommendation in the manner asserted by the prosecution. These references identify two different strands that could otherwise be compressed into the phrase "finance objections." One was an internal finance note and the minister's response to it. The other was testimony about what a regulatory recommendation meant and how it had been understood. Neither reference alone answers the criminal question. A difference of policy opinion can exist without a conspiracy, while a relevant recommendation can still matter when assessing what officials knew and why they acted. The High Court selected the contrast and the interpretation dispute for further scrutiny at the leave stage. The resulting appeal could examine the actual notes, their file context and the witnesses' explanations rather than substitute a general claim that everyone either demanded an auction or approved the old fee. (Delhi High Court, March 22, 2024, paragraphs 259 and 263-264)
The defence's account was also document-based. Raja's counsel relied on Ex.PW11/W for the regulator's recommendation concerning the entry fee and Ex.PW131/DB, a letter of August 20, 2011, concerning the background against which spectrum and licence policy had developed. The submissions referred to Mathur's evidence, Ex.PW36/C-2, a departmental file marked Ex.PW36/A-3 and further exhibits on policy and revenue generation. This evidence was offered against the inference that retaining the old fee demonstrated a criminal agreement. The prosecution, in contrast, argued that the trial judgment had put undue weight on defence accounts and had undervalued officials who supported its case. Paragraph 264 reproduced a passage in which the trial judge reasoned from the small number of licences issued between 2003 and 2007 and concluded that a higher fee might have reduced applications further. At the leave stage, the High Court questioned that reasoning and placed it within the appeal's arguable grounds. The important distinction is between an economic explanation advanced in evidence and a court's final resolution of the criminal charge. The competing documents and interpretations were part of the dispute; the leave order did not resolve them by declaring either the prosecution's fee theory or the defence's growth theory conclusively established. (Delhi High Court, March 22, 2024, paragraphs 35-36, 220 and 263-264)
The money-trail dispute included arguments about Sharad Kumar's knowledge and role, not merely the existence of a Rs 200 crore transfer. His counsel said he handled technical matters at Kalaignar TV, lacked cheque-signing authority and did not know the ultimate source of the funds received. The defence relied on PW-107, Amirtham, and PW-116, Rajendran, for parts of that account. It argued that the prosecution had not proved the alleged personal association with Raja or that Sharad Kumar knew the money was a bribe. A further exhibit, Ex.PW154/A-1, was cited for the proposition that Kalaignar TV had already been carried on Tata Sky's channel bouquet from August 2007, in response to an allegation about Raja's influence over carriage. These arguments illustrate the limits of reading a bank trail without the accompanying evidence about responsibility and knowledge. A transfer can be recorded while the parties dispute its purpose, the recipient's understanding, the authority of an individual employee and the relevance of other business dealings. The leave order recorded those defence submissions; it did not certify them as facts finally found on appeal. It also did not transform their rejection by the prosecution into proof of the opposite proposition. The eventual merits hearing would have to assess the relevant testimony and documents in the context of the charged transaction. (Delhi High Court, March 22, 2024, paragraphs 196-200)
The share-subscription agreement itself was disputed through a different evidentiary route. Counsel said the original agreement had been reported misplaced during an office move, but that an undisputed photocopy existed and PW-116 and PW-107 confirmed it had been signed in their presence. The defence further relied on Rajendran's evidence concerning stamping and argued that the equity transaction failed because the company's valuation exceeded Rs 800 crore. It said prosecution witnesses had themselves supplied evidence contrary to the prosecution theory and had not been declared hostile. Those were arguments about the document's existence, the transaction's commercial explanation and the use of witness testimony. In its analysis, the High Court noted the challenge to the trial judgment's rejection of criminality concerning the Rs 200 crore transaction, while leaving detailed evidence appraisal to the appeal. It also addressed the CBI's objection to describing the later telecom equity transactions simply as "offloading," recording the prosecution's argument that the substance involved acquisition of an entity possessing valuable licences. The order thus preserved disagreements about legal character as well as arithmetic. Whether money was fresh equity, an unsuccessful subscription, a loan or an alleged payment for an official favour depended on the relevant transaction and evidence, not on using one financial label across every company in the case. (Delhi High Court, March 22, 2024, paragraphs 200-201 and 265-269)