The Supreme Court on Monday asked the special court hearing the ‘2G spectrum’ case to postpone till April 16 the proceedings against Bharti Airtel chief Sunil Mittal, who was issued summons to appear before the court, which took cognisance of the CBI’s chargesheet.

A three-judge Bench of Chief Justice Altamas Kabir and Justices Anil R. Dave and Vikramajit Sen, in a brief order, asked the CBI to file its response by Wednesday and rejoinder by the petitioner by Friday and directed the matter to be listed for further hearing on April 15.

The trial court, while summoning former telecom secretary Shyamal Ghosh, also issued summons to Mr. Mittal, Asim Ghosh, former head of Vodafone-Essar, and Ravi Ruia, one of the founders of Essar Group, holding that they were prima facie in control of the affairs of their companies which were named in the chargesheet by the CBI. Mr. Mittal challenged this order in the Supreme Court.

Appearing for Mr. Mittal, senior counsel Harish Salve faulted the special court for issuing summons though his name did not figure in the chargesheet.

When the CJI wanted to know whether the trial court could issue summons to the petitioner when he was not cited as accused in the chargesheet, senior counsel K.K. Venugopal, appearing for the CBI, said the trial court had the power under Section 319 of the Cr.P.C to proceed against other persons, not named as accused in charge sheet, appearing to be guilty of the offence.

When the CJI asked the counsel why the CBI did not make the petitioners as accused in the case, Mr. Venugopal said there was a difference of opinion between the Director of Prosecution and the CBI Director. 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. He quoted several judgments to drive home the point that the trial court was empowered to include any person as accused even if their names did not figure in the chargesheet.

The CJI pointed out that the trial court had the power to include any one other than those cited as accused in the chargesheet only after recording of evidence and not at the stage of taking cognisance.

Mr. Venugopal said the trial court had perused the chargesheet, statements of witnesses and other relevant materials and come to the conclusion that the petitioners should be included as accused and issued summons. He said the probe by the “investigating officer had found evidence against the CMD Mr. Mittal” and said he should be prosecuted. The petitioner should approach the trial court and seek discharge from the case, he said. When counsel Prashant Bhushan, appearing for Telecom Watchdog, tried to make his submissions, the Bench initially questioned his locus standi. However, it directed the petition filed by Telecom Watchdog to be listed on April 15 along with the petition filed by Mr. Mittal.

Status quo ordered on

Airtel’s appeal on 3G

In another case, the apex court ordered status quo on a special leave petition filed by Bharti Airtel against a Delhi High Court order directing it to stop its 3G services in cities where it had not obtained licence.

A Bench of Chief Justice Altamas Kabir and Justice Vikramajit Sen after hearing senior counsel Abhishek Singhvi and senior counsel Soli Sorabjee for Airtel, senior counsel Mukul Rohatgi, for Reliance Communications, and Additional Solicitor General A.S. Chandihok, directed the matter to be listed for a detailed hearing on April 11.

A Division Bench of the Delhi High Court, by its April 4 order, had vacated the stay of the order granted by a single judge against an order passed by the Department of Telecommunications (DoT) to Airtel to stop its service. The High Court was acting on a petition by Reliance Communications stating that Airtel’s move to provide pan-India 3G data services was impacting its business. Reliance had contended before the Division Bench that a single judge had wrongly stayed the DoT’s order to Airtel to stop the 3G services offered outside its licensed zones.

The DoT on March 15 had issued a notification restraining Airtel from providing 3G intra-circle roaming facilities in seven circles where it did not have the spectrum and also levied a penalty of Rs. 350 crore (Rs. 50 crore per circle) for violating the licence terms and conditions.

Mr. Singhvi submitted that the status quo order was in their favour since 2010 and it was disturbed by the Division Bench of the High Court by setting aside the single judge’s order, granting stay. He said the relief was granted on an appeal filed by Reliance, though the Centre did not prefer any appeal against the DoT committee’s order to stop the services in circles where it had an agreement with other service providers. If stay was not granted, millions of subscribers would be affected by the High Court’s order, he said.

Disputing this, Mr. Rohatgi said they were illegally operating the services in circles where they did not bid and were cutting into the business of Reliance, which had invested over Rs. 10,000 crore to obtain the 3G spectrum licence. Airtel could not be allowed to take advantage of the interim order of the court as other operators had sublet their licences, which was not permissible. He said his client had lost Rs. 5,000 crore in the last three years because of the arrangement made by Airtel and other operators, who did not get 3G licence. He pleaded with the Bench not to allow them to take new subscribers.

Mr. Chandihok defended the penalty imposed on the operators, stating that in the guise of agreement for inter/intra circle roaming, they were illegally selling their products without obtaining any licence.