Balwa seeks guidelines on probe monitoring by courts

Last Updated: Tue, Dec 11, 2012 13:50 hrs

New Delhi, Dec 11 (IANS) 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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