New Delhi: The then CBI Director A P Singh and agency's prosecution chief were of the view that there was no case against Chairman and Managing Director of Bharti  Airtel Sunil Mittal in the 2G spectrum case involving former Secretary Shyamal Ghosh and late minister Pramod Mahajan.

This has been disclosed in the opinion given to the Supreme Court last week by Attorney General Ghulam V Vahanvati, who said "there is no disagreement on this point" between the CBI Director and its Director of Prosecution Abdul Aziz.

"Therefore, it is not for me to comment on the views of the executive officers of the CBI for the reasons already stated hereinabove," the AG said in his opinion. The AG noted that the Director of Prosecution and the retired Additional Legal Advisor (ALA) had in a note in October 2012 had agreed that there was a case against Ghosh and the then Telecom Minister Mahajan.

The ALA had said that as regards the corporates namely Bharti Cellular Limited, Hutchison Max Limited and Sterling Cellular Limited and Mi5 BPL Cellular Limited, the circumstances mentioned by the investigating officer as well as other officers was that Sunil Mittal of Bharti Telecom used to meet the Minister and the then Secretary during that period.

It also referred to the launch of IPO by Bharti Airtel in early 2002 and the lobbying by Sunil Mittal with the Minister and other officials of ministry.

"From the chart it appears that the linking of the issue of investment of Qualified Institutional Bidders (QIBs) in the companies with the omissions and commissions of the Secretary and the Minister is too remote.

"Similarly, meeting of the corporate lobby with the high ups in the office are common unless evidence of any text of meeting indicating any criminal intent of the parties are available, it cannot be linked with criminal motive," the ALA's note said.

The ALA concluded "moreover the corporate houses contribute to the economic growth of the country. Therefore, meeting by corporate lobbyist with high-ups in the government cannot be termed to be criminal intent."

In his opinion, the CBI Director after noting that the Investigating Officer and Senior Public Prosecutor had recommended prosecution of two other companies also noted that the views of the Superintendent of Police, Head of Branch and Head of Zone that the other two companies should not be prosecuted.

The CBI Director was of the view that the other two companies may also be liable for prosecution. The Attorney General went into a question whether a case is made out of Bharti Cellular (now Bharti Airtel Limited) and the other two companies Hutchison Max Limited (Vodafone) and Sterling Cellular (now known as Vodafone Mobile Services), which are also contemporary beneficiaries of questioned decision of January, 2002 of allocation of additional spectrum.

The Attorney General noted the view of Director of Prosecution that linking the issue of investment in IPO with the omission of commission of Secretary and the then Minister "is too remote".

Vahanvati also recalled that the CBI Director felt that the case for prosecution was made out against Ghosh and the company Bharti Cellular for the offences of criminal conspiracy (120-B) read with provisions of Prevention of Corruption Act.

The Director was also of the opinion that the other two accused companies -- Hutchison Max and Sterling Cellular -- may also be liable for prosecution. The CBI Director went on to observe that it, however, required to be legally examined in depth whether case against these two companies was made out on the basis of available evidence.

"It also needs to be examined whether the companies alone can be proceeded against in view of the legal and factual position highlighted by the Branch Officers," the CBI Director noted.     Vahanvati said that he was of the view that evidence in this behalf has to be analysed carefully and regard must be had to the law on the point as set out by the Supreme Court in the Iridium India Telecom Limited versus Motorola Inc case.

In that case the Supreme Court had noted the English Doctrine of attribution and imputation and held that the state of mind of the managers can be the state of the mind of the company and stated by the law as such.

"Therefore, it needs to be examined whether a case is made out on the basis of the available evidence, applying the law as aforesaid," the AG said in his opinion.


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