10 Feb 2022 2:37 PM GMT
While giving last opportunity to fugitive businessman Vijay Mallya to appear, the Supreme Court of India on Thursday expressed a clear intention to go ahead with the sentence hearing in the contempt case against him, and posted the matter for hearing on February 24th, 2022.Vijay Mallya was found guilty of contempt in 2017 for disobeying court's orders in not disclosing full particulars of...
While giving last opportunity to fugitive businessman Vijay Mallya to appear, the Supreme Court of India on Thursday expressed a clear intention to go ahead with the sentence hearing in the contempt case against him, and posted the matter for hearing on February 24th, 2022.
Vijay Mallya was found guilty of contempt in 2017 for disobeying court's orders in not disclosing full particulars of the assets in a case between the State Bank of India and Kingfisher Airlines.
A Bench comprising Justice UU Lalit and Justice Ravindra Bhat orally indicated that this is the last opportunity for Mallya to appear before the Court or make submissions through his counsel, failing which matter shall be taken to logical conclusion and proceeded further.
The Court has granted liberty to Mallya to act in accordance with directions issued by the Court on 30th November 2021 whereby Mallya was granted liberty to advance such submissions, as are deemed appropriate, and if, for any reason, he is not present to advance such submissions, counsel on his behalf can advance such submissions as are open to Mallya, in law.
The Bench passed the order today taking into consideration the submissions made by the Amicus Curiae Senior Advocate Jaideep Gupta who suggested that the matter may be adjourned for short time with an expression that this would be final opportunity for the contemnor and in case he choses to not remain personally present or advance submissions through counsel, court may proceed further with the matter.
Solicitor General Tushar Mehta also supported the submissions of the Amicus.
The SG further clarified that it wasn't a submission made on on behalf of Government of India that the nature of proceedings going on in the United Kingdom against Mallya are confidential but the authorities only conveyed the impression gathered from UK side.
The Amicus also submitted that on the issue of sentence in order dated 30th November, the court granted liberty to contemnor to advance such submissions as deemed appropriate and in case of inability on his part to appear, liberty was granted to counsel on his behalf to advance such submissions
He therefore opined that the principles of natural justice stand complied with and adequate opportunity was given to respondent contemnor.
The submissions were made in response to Court's query as to what course the court should adopt in accordance with law, and if the court can proceed with sentencing hearing for contempt against Mallya without him appearing.
"We have found a person guilty of contempt and punishment has to be imposed. Going by normal logic contemnor has to be heard, from that stage he hasn't appeared before the court. Now there are some proceedings going on, we don't know what. The Officer from the Ministry said that some proceedings are pending. What course should this court adopt?" Justice Lalit asked
The Amicus submitted that the court may pass another order clarifying the repercussions in case the contemnor doesn't appear.
The Bench then asked if it can proceed in absentia, and sought the Amicus' assistance.
"Your suggestion to adjourn will only take us so for, next hearing same thing will happen. We'll have to pronounce sentence in absentia. In this situation, in other countries also, courts are not powerless. We want assistance in that regard." Justice Ravindra Bhat said.
Justice Bhat however expressed his concern towards the Court proceeding with the case without hearing the contemnor. He stated that this shouldn't become a gateway for courts of first instance to adopt this course.
"We'll have to say this is in extraordinary sense of matter, he has been found guilty, and has run. We'll have to have appropriate safeguards", Justice Bhat said.
Solicitor General Tushar Mehta submitted that while he shares Justice Bhat's concern, the Supreme Court has inherent jurisdiction in contempt cases. The Court can therefore proceed with the case as multiple opportunity have already been given to the contemnor.
While stating that the Mallya's counsel hasn't represented himself before the court, the Bench also asked the Amicus if the Court needs to appoint an amicus for the contemnor as in criminal matters the court normally appoints an amicus to represent cause of the accused.
The Amicus submitted that if the counsel says that he doesn't want to represent the contemnor, then the court should appoint an Amicus.
Earlier on 30th November 2021, the Bench had expressed a clear intention to go ahead with the sentence hearing in the contempt case against fugitive businessman Vijay Mallya.
The Court had stated that even if Mallya - who is now in United Kingdom from where the India Government is trying to extradite him- is not present before the Court on the day of hearing for any reason, it will hear the counsel on his behalf. The Court also appointed Senior Advocate Jaideep Gupta as an amicus curiae to assist it in the matter. On an earlier occasion, the Court had rejected the request made by Advocate EC Agarwala seeking his discharge as Mallya's counsel in the case.
The observation was made after a statement of the Ministry of External Affairs was furnished to the bench.
In the statement, the Deputy Secretary (Extradition) Ministry of External Affairs stated that the proceedings for extradition have attained finality and Vijay Mallya has exhausted all avenues of appeal in United Kingdom .
However, Para 3 & 4 of the statement deal with certain proceedings which are stated to be confidential and no details are being disclosed, the bench had noted in the order.
On August 31, the Supreme Court had directed the Ministry of Home Affairs to facilitate and ensure the presence of fugitive liquor baron Vijay Mallya before the court, for hearing on sentence in the 2017 contempt case against him.
In October 2020, the Centre had informed the Supreme Court that "secret" extradition process was going on to bring fugitive businessman Vijay Mallya to the country but it was not aware about its status.The Centre had also told the top court that it was not a party to the proceedings.
A bench of Justices U U Lalit and Ashok Bhushan had asked Mallya's lawyer to inform the court what kind of "secret" proceedings are going on to extradite him.
The bench also directed Mallya's lawyers to apprise it by November 2 when can the fugitive businessman appear before the court and when the "secret" proceedings are going to end.
The apex court had earlier directed Mallya to appear before it on October 5 while dismissing his plea seeking review of the 2017 verdict which held him guilty of contempt for transferring USD 40 million to his children in violations of court orders.
Mallya, an accused in bank loan default case of over Rs 9,000 crore involving his defunct Kingfisher Airlines, is in the United Kingdom.
The apex court's 2017 order had come on a plea by consortium of banks led by the State Bank of India (SBI), which had said that Mallya had allegedly transferred USD 40 million received from British firm Diageo, to his children in "flagrant violation" of various judicial orders.
It was dealing with pleas of lending banks seeking contempt action and a direction to Mallya to deposit USD 40 million received from offshore firm Diageo respectively.
The banks had then alleged that Mallya concealed the facts and diverted the money to his son Siddharth Mallya and daughters Leanna Mallya and Tanya Mallya in "flagrant violation" of the orders passed by the Karnataka High Court.
Mallya had in May last year lost his application seeking leave to appeal his extradition to India in the UK Supreme Court.
Mallya has been based in the UK since March 2016 and remains on bail on an extradition warrant executed three years ago by Scotland Yard on April 18, 2017.
Case Title: State Bank of India vs Kingfisher Airlines
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