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Appear on Feb 24: Top court’s last chance for Vijay Mallya evading contempt case
The petition for initiating contempt was moved by a consortium of banks led by the State Bank of India over unpaid loan dues to the tune of over ₹9000 crore (including interest). Mallya is separately facing trial on alleged laundering of money and has been declared a fugitive economic offender to facilitate his extradition.
The Supreme Court on Thursday granted fugitive businessman Vijay Mallya one last opportunity to appear before it on February 24 in a contempt of court case where an order on sentence is pending for the past four years despite a clear finding of guilt recorded by the top court in May 2017.
With no fresh information forthcoming on the “confidential” proceeding initiated by Mallya in United Kingdom, a bench of justices UU Lalit and S Ravindra Bhat consulted Solicitor General Tushar Mehta and senior advocate Jaideep Gupta, assisting the Court as amicus curiae, and said, “The contemnor is at liberty to act in terms of direction (a) and (b) in our order of November 30, 2021 failing which the matter shall be taken to its logical conclusion and proceeded further on the next occasion.”
Mallya was held guilty for contempt as he acted in violation of a Court order of March 2016 directing him to supply a list of all his moveable and immovable assets. He failed to disclose the receipt of a sum of USD 40 million from British spirit maker Diageo in February 2016. He even transferred this amount into the bank accounts of his three children in clear violation of his assurance not to alienate his assets.
The petition for initiating contempt was moved by a consortium of banks led by the State Bank of India over unpaid loan dues to the tune of over ₹9000 crore (including interest). Mallya is separately facing trial on alleged laundering of money and has been declared a fugitive economic offender to facilitate his extradition.
On the last occasion (November 30), a similar order was passed by the Court where it observed, “We have waited sufficiently long enough,” and held, “If for any reason, respondent (Mallya) is not present to advance submissions, the counsel on his behalf or E.C Agrawala (the lawyer appearing for him previously) of this court can advance such submissions as are open to him in law.”
Reiterating this direction, the bench posted the matter on February 24 and made it clear that on the next date, it will hear arguments on sentence. As a rule, in contempt cases, contemnor is required to remain physically present before the Court. This rule too was relaxed in order to facilitate Mallya’s appearance. “We relaxed the process by allowing him to make representation through counsel. So theoretically, he can advance submissions. But if he chooses not to take this option, Court can certainly go ahead,” observed the bench.
The Court also noted that since contempt proceedings involves a component of punishment; safeguards need to be put in place to ensure such proceedings do not become precedent for trial courts to pass directions against accused whose presence cannot be secured.
“This should not become a gateway for courts of for courts of first instance in criminal matters to resort to such practice. We need to ring-fence what we have to do with sufficient safeguards,” the bench observed.
Gupta said that a final opportunity could be given making it known to the contemnor the consequences that will follow if he does not appear. “Principles of natural justice entail that a person is given opportunity of hearing. But if he does not wish to take, it is sufficient compliance of this rule,” the amicus submitted.
The Court recalled the contempt proceedings initiated by Supreme Court against a former Madras high court judge justice (retd) CS Karnan who refused to appear before the Court and was punished with six months imprisonment in May 2017. “In criminal matters, if there is no representation from the accused, we appoint amicus curiae to represent the cause of the accused,” the bench observed.
Solicitor General shared the concern of the bench and said, “The Supreme Court is a court of record having inherent jurisdiction to punish for contempt of its orders. This cannot be a precedent for trial courts as they are to be governed by the Code of Criminal Procedure (CrPC).”
On the previous date of hearing, the solicitor general had informed the Court that a “confidential” proceeding initiated by Mallya in United Kingdom, details of which were not disclosed to the ministry of external affairs (MEA) by their counterparts in UK. Mallya had already exhausted all avenues of appeal to challenge the order of the UK courts directing his extradition.
Mehta sought a clarification from the Court that this fact recorded by the Court in its earlier order should not reflect as the stand of the Centre. The Court assured that it had only reproduced what was stated in the note provided to the MEA by the UK foreign ministry. The note said, “Her Majesty’s government cannot provide any more details. We also cannot estimate how long this issue will take to resolve. Her Majesty’s Government fully understands the importance of this case to the Government of India. I can reassure that Her Majesty’s Government is seeking to deal with the issue as quickly as possible.”
The contempt proceedings moved by the banks arose out of a debt recovery tribunal (DRT) proceeding where a consortium of banks have demanded outstanding dues of ₹6203 crore against Mallya and his companies. Over the years, this amount has swelled to over ₹9700 crore inclusive of interest. Mallya gave an oral undertaking to DRT that he will not alienate his assets.
Against the conviction order passed by SC on May 9, 2017, Mallya had filed a review petition that was dismissed in August 2020. Since then, the matter was adjourned on numerous occasions due to his non-availability.
