Mittal had challenged the CBI court's order, summoning him as an accused, in a case relating to the grant of additional spectrum to the firm in 2002 when the NDA government was in power.
A three-judge bench headed by Justice Altamas Kabir asked the CBI as to why it did not name him an accused when there was enough material against him for prosecution in the corruption case linked to the allocation of additional 2G spectrum in 2002.
We don't understand this. You (CBI) say there was enough material against them, but then why did you not name them as accused We would have understood this if their names would have been included as accused in the chargesheet. But you did not do so, the bench told CBI senior counsel KK Venugopal, who was defending the special court's order.
Accepting the legal position, the bench said that indeed the court had such powers to summon anyone but it was also undisputed that CBI opted not to name them in its report. The bench, while adjourning the proceedings before the CBI court till April 16, asked the agency to file an affidavit, detailing specific allegations against Mittal as per the chargesheet and other evidence. The apex court will hear the matter on April 15.
Besides Mittal, special CBI Judge OP Saini, who is examining alleged irregularities in the allocation of airwaves when BJP-led NDA was in power, also summoned Essar Group promoter Ravi Ruia who was then a director in one of the accused company Sterling Cellular.
Asim Ghosh, the then MD of accused firm Hutchison Max Telecom (now Vodafone) is also facing criminal charges. Ruia is already facing trial in another case related to 2G spectrum allocation.
Venugopal on Monday argued that there was a sufficient incriminating material in the chargesheet to summon Mittal and others as accused.
He argued that the court had enough power to summon any person after conducting an inquiry into the averments of the chargesheet filed December 21 last year. He added that the statements of witnesses and other evidence pointed to Mittal's role.
Senior advocate Harish Salve, appearing for Mittal, challenged the summons on the ground that the 2G court resorted to a logic which was completely contrary to the positions in law and judicial pronouncements.
Mittal, in his appeal, said that the court summoning order was patently erroneous and should have waited at least till the stage of framing of charges, where it would have had the benefit of assistance of counsel of the CBI and the accused companies.
In his petition before the SC, Mittal said that the MD or directors of a company cannot be said to have committed an offence merely because they are holders of offices and that 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 CBI had expanded its probe into the 2G spectrum scam, centering around former telecom minister A Raja to include all spectrum allocations since 2001 at the behest of the Supreme Court, which is monitoring the investigations into the case.
Broadly, the CBI's charge is that Bharti and Vodafone were the beneficiaries of the DoT's move on January 31, 2002 to allocate additional spectrum. It has said that the then telecom minister Pramod Mahajan and Ghosh showed undue haste in clearing the proposal, bypassing Trai.
Initially, there were two views in the CBI whether to name Mittal or only the company, since Bharti was seen to be the larger beneficiary of the move by it. Finally, the then CBI director AP Singh opined that only the private companies should be mentioned and no officials from them.