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Shahid Balwa seeks guidelines on probe
monitoring by courts
Tuesday December 11, 2012 07:34:28 PM,
IANS
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New Delhi:
The Supreme Court Tuesday agreed to hear the plea of Shahid Balwa,
Swan Telecom's former director and an accused in the 2G spectrum
case, seeking guidelines on monitoring of criminal probes by
constitutional courts.
The apex court bench of Chief Justice Altamas Kabir, Justice S.S.
Nijjar and Justice J. Chelameswar told senior counsel Ram
Jethamalani, appearing for Balwa, that it would take up the
petition for hearing Thursday.
The court said this after Jethmalani said the defects in the
filing of the petition had been cured and it had been numbered.
The senior counsel had mentioned the matter Monday but the court
said that it would hear it only after it was filed.
Swan Telecom is now known as Etisalat DB Telecom Pvt. Ltd.
Balwa urged the apex court to frame the guidelines while seeking
the setting aside of its April 11, 2011, and Nov 9, 2012, orders
which said that any order of the trial court hearing 2G cases
could be challenged before it only.
Balwa said he could not be deprived of his right to move the high
court to appeal against the trial court order and could only knock
the door of the apex court to agitate his grievance.
He has also sought a declaration that after the filing of the
chargesheet and framing of the charges and commencement of the
trial no monitoring of the investigation and/or the trial was any
more necessary in view of the law laid down by the apex court
itself.
The petition said the apex court in several cases had held that
"upon filing of the chargesheet the monitoring of investigation by
the court, comes to an end and from then on the trial court
assumes jurisdiction to conduct the trial as per law".
The petition raised the question of the power of the
constitutional courts to monitor and oversee criminal
investigations.
Balwa said the monitoring of the investigation by the apex court
and the exercise of jurisdiction to adjudicate issues arising
therefrom had to be dealt with in order to ensure that the
prosecutor, the investigator and the judge were not seen to be
same person.
All these three functions have to be carried out independent of
one another without any overlap, he said.
Balwa in his petition said that it was well-settled that no court,
including the apex court, could issue "directions or orders to the
executive authority or to subordinate judiciary which are contrary
to the basic structure of the constitution or any statute".
The petition said the apex court had earlier held that in exercise
of its vast powers under Article 142 of the Constitution, none of
its orders could be contrary to the mandate of the law.
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