The Supreme Court on Thursday wondered if it can punish fugitive businessman Vijay Mallya, found guilty of contempt, in absentia or whether it should appoint an amicus curiae for him.
A Bench of Justices U.U. Lalit and S. Ravindra Bhat adjourned the case to February 24, while giving Mr. Mallya, who is believed to be in the United Kingdom, to come clean on whether he intends to mount his defence in person or through a lawyer in tune with the principles of natural justice. In a way, the court seemed reiterate its order of the previous hearing on November 30, 2021.
However, the court said it would lead the case to its "logical conclusion" if Mr. Mallya choose to not take his opportunity on the next date of hearing.
Mr. Mallya's lawyer E.C. Agarwalla, in an earlier hearing, had asked the court to discharge him as counsel from the case.
Thursday's hearing did not see a lawyer represent Mr. Mallya, who was found guilty of contempt in May 2017.
"Do we appoint an amicus curiae or do we go ahead in absentia?" Justice Lalit asked.
The court said ordinarily the contemnor, Mr. Mallya in this case, ought to be heard.
Number of opportunities
Senior advocate Jaideep Gupta, who was appointed amicus curiae in November to aid the court in the case, pointed out that the court had given a number of opportunities to Mr. Mallya to present his case, but he had abstained. Mr. Gupta agreed that the court could appoint an amicus for him.
Solicitor General Tushar Mehta said natural justice was met when the court offered him opportunities to be heard in the case. "He was given, but he is not taking," Mr. Mehta said.
Justice Bhat asked what the court should do "when you are running away from the clutches of the law".
In November, the court had made it clear that it did not intend to wait for Mr. Mallya "forever".
It has been over four years since the Supreme Court found Mr. Mallya, who fled to the U.K., guilty of contempt for willful disobedience of its order to come clean about his assets and not disclosing a sum of $40 million (₹600 crore) he had received from British liquor major Diageo Plc following his resignation as Chairman of United Spirits Limited in February 2016.
The Ministry of External Affairs had informed the court that though Mr. Mallya's extradition had "attained finality", certain "confidential" proceedings of an undisclosed nature in the U.K. were stalling the extradition.
The court had found Mr. Mallya guilty of contempt on May 9, 2017.
Review plea dismissed
On August 30 2020, the apex court had dismissed Mr. Mallya's review petition against the 2017 verdict of contempt. The court had found no merit in Mr. Mallya's three-year-old review plea against his conviction.
In his original arguments before the apex court in 2017, Mr. Mallya said the $40 million was one among “thousands of transactions” he did and cannot be counted as an asset. He said he had no control over that money now as he had already disbursed it among his three adult children, who are U.S. citizens.
Countering allegations made by a banking consortium led by the State Bank of India which had filed the contempt of court petition against him, Mr. Mallya had said he had already given a complete list of assets as of March 31, 2016. The court had ordered Mr. Mallya to provide the banks with a list of his assets so that they could recover ₹9,200 crore due to them.
The banks had sought contempt action against Mr. Mallya arguing that the disbursal of the $40 million among his three children was in direct violation of a standing Karnataka High Court order that none of his assets should be “alienated, disposed of or be subjected to the creation of third party rights.”
