Airtel, Essar bosses get relief

New Delhi: In a huge relief, the Supreme Court on Friday quashed the summons issued to Sunil Bharti Mittal of Airtel, Ravi Ruia, one of the founders of Essar group and the former telecom secretary Shyamal Ghosh for their appearance in the 2G case. A three-judge bench of Chief Justice H.L. Dattu and Justices Madan B. Lokur and A.K. Sikri set aside the orders passed by the CBI special judge including them as accused in the case, though only the companies were cited as accused in the chargesheet.

Writing the judgment Justice Sikri said, “When the company is the offe-nder, vicarious liability of the  criminal intent of the “alter ego” of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation.The legal proposition that is laid down by the apex court is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are the “alter ego” of the company."

The bench said “directors cannot be imputed automatically, in the absence of any statutory provision to this effect. In the present case, while issuing summons against the appellants, the  magistrate has taken shelter under a so called legal principle, which has turned out to be incorrect in law. He has not recorded his satisfaction by mentioning the role played by the appellants which would bring them within criminal net.

Appearing for Mr. Mittal, senior counsel Harish Salve faulted the special court for issuing summons though his name did not figure in the chargesheet.“This was a patent misdirection by the special court and the issuance of summons was directly against the decisions of the Supreme Court,” he said. The bench, however made it clear that since on an erroneous presum-ption in law, the magistrate had issued the summons to the appellants, it would always be open to the magistrate to undertake the exercise of going through the material on record and on that basis, if he was satisfied that there was enough incriminating material on reco-rd to proceed against the appellants as well, he might pass appropriate orders in this behalf.

“We also make it clear that even if at this stage, no such prima facie mat-erial is found, but during the trial, sufficient incri-minating material against these appellants surfaces in the form of evidence, the Special Judge shall be at liberty to exercise his powers under Section 319 of the CrPC to rope in the appellants by passing appropriate orders,” the bench added.