Sunil Mittal’s hearing plea postponed till April 16

CBI, which told the apex court that investigation into the case has "found evidence against the CMD", was asked to file a short affidavit along with the police report, i.E the charge sheet by Thursday.

Updated: Apr 08, 2013, 21:03 PM IST

New Delhi: The Supreme Court on Monday postponed till April 16 the proceedings in the Special CBI court against Sunil Bharti Mittal, CMD of Bharti Cellular Limited, who has been summoned as an accused in a corruption case related to allocation of additional 2G spectrum in 2002.

CBI, which told the apex court that investigation into the case has "found evidence against the CMD", was asked to file a short affidavit along with the police report, i.E the charge sheet by Thursday.

"In the meantine, hearing before the Special Judge/CBI (2G spectrum cases), New Delhi will be postponed till Tuesday (April 16)," a bench headed by Chief Justice Altamas Kabir said.

The bench said Mittal will file the rejoinder to the CBI affidavit by Saturday and the matter will be heard by it on April 15.

The day's proceedings began with the bench, also comprising justices A R Dave and Vikramajit Sen, asking the CBI as to how Mittal has been summoned as an accused when his name was not there in the charge sheet.

Mittal's counsel and senior advocate Harish Salve dubbed the order of Special CBI judge O P Saini as a "complete misdirection of law".

However, senior advocate K K Venugopal, appearing for the CBI, said the court has a power under section 319 of the CrPC to proceed against other persons, not named as accused in charge sheet, appearing to be guilty of the offence.

He said along with the charge sheet, statements recorded during the probe has been annexed and the special court took cognizance of them to summon Mittal as an accused in the case.

The bench raised questions including "why in the charge sheet the names of those persons (Mittal and others) were not mentioned at all".

During the hearing, the bench said the magistrate (special court) is free to proceed against the person not named in the charge sheet if there are material against him.

Venugopal said that in the case in hand, the probe by the "investigating officer had found evidence against the CMD".

"Investigation report said that CMD Airtel has to be prosecuted," he told the bench which wanted to know "why didn't they proceed to make him accused".

Venugopal said after the investigation was completed there was a difference of opinion between the Director (Prosecution) and CBI Director in mentioning those named in the FIR as an accused in the charge sheet.

He said since Attorney General G E Vahanvati, whose opinion was sought, preferred not to give his view on the issue, another bench of Justices G S Singhvi and K S Radhakrishnan left it to the Special CBI judge to decide on the issue.

Venugopal said the issue raised here by Mittal can be argued before the Special CBI court as charges have not been framed as yet.

Meanwhile, the bench declined to give hearing to NGO, Telecom Watchdog, by telling its counsel Prashant Bhushan that it did not have the locus standi.

"You have no locus standi. When you make an application we will consider. Otherwise hundreds of people will come from roads," the bench said.

However, it agreed to hear the appeal filed by the NGO against the order of the Special Court dismissing its plea for directing CBI to prosecute Mittal as an accused in the case on the grounds of locus standi.

While summoning Mittal, Asim Ghosh, MD of Hutchison Max Telecom Pvt Ltd and Ravi Ruia, a Director in Sterling Cellular Ltd, the special court had said that they were "prima facie" in "control of affairs" of their companies, named in the charge sheet by CBI in the case.

The trial court had also summoned Ruia and Ghosh, whose names were not mentioned in the charge sheet.

Mittal had approached the apex court contending that criminal liability cannot be fastened on an individual for alleged acts of a firm.

"The special judge failed to consider the settled law in the context of vicarious criminal liability of Managing Directors/Directors and other officers of corporations that in the absence of specific statutory provisions making individual actors liable, there shall be no vicarious criminal liability imposed on any individual for acts of any corporation," the petition filed by Mittal had said.

"Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of provisions of a statute must be expressly stated. The Managing Director or Directors of a company cannot be said to have committed an offence merely because they are holders of offices," it said.

It had said that charge sheet was scrutinised by various authorities including the Attorney General, Central Vigilance Commission and CBI director and hence, the subsequent order of the trial court was arbitrary as Mittal and others were not named as accused.

CBI had filed the charge sheet on December 21 last year against former Telecom Secretary Shyamal Ghosh and three telecom firms -- Bharti Cellular Ltd, Hutchison Max Telecom Pvt Ltd (now known as Vodafone India Ltd) and Sterling Cellular Ltd (now known as Vodafone Mobile Service Ltd). They all were also summoned for April 11 by the court.

The CBI, in its charge sheet, has named the three telecom companies as accused in the case in which the Department of Telecommunications had allocated additional spectrum which had allegedly resulted in a loss of Rs 846 crore to the exchequer.