Delhi High Court
Asif Balwa vs Cbi on 9 October, 2013
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.MC. No.4197/2011 & Crl.MAs No.19390-91/2011,
WP(Crl.) No.206/2012 & Crl.MAs No.1669-70/2012,
Crl.MC 4199/2011 & Crl.MAs No.19395-96/2011,
Crl.MC No.67/2012,Crl.MC No.1060/2012 & Crl.MAs
No.3742-43/2012, WP(Crl.) No.129/2012 & Crl.MA
No.1018/12, WP(Crl.) No.159/2012 &
Crl.MAs No.1356-57/2012, WP(Crl.) No.207/2012 &
Crl.MAs No.1679-80/2012, WP(Crl.) No.208/2012 &
Crl.MAs No.1681-82, WP(Crl.) No.467/2012 & Crl.MA
No.3821/2012, WP(Crl.) No.656/2012, WP(Crl.)
No.913/2012 & Crl.MA No.7997/12,
WP(Crl.) No.1587/2012 & Crl.MA No.18624/12 ,
WP(Crl.) No.1588/2012 7 Crl.MA No.18628/12,
WP(Crl.) No.1589/2012 & Crl.MA No.18630/12 &
WP(Crl.) No.111/2012 & Crl.MA No.858/12,
Decided on 09.10.2013
IN THE MATTERS OF :
ASIF BALWA Petitioner in Crl.MC No.4197/2011
SHAHID BALWA Petitioner in WP(Crl) No.206/2012
RAJIV AGARWAL Petitioner in Crl.MC No.4199/2011
SANJAY CHANDRA Petitioner in Crl.MC No.67/2012
KARIM MORANI Petitioner in Crl.MC No.1060/2012
VINOD KUMAR GOENKA Petitioner in WP(Crl) No.129/2012
SHAHID BALWA Petitioner in WP(Crl) No.159/2012
R.K.CHANDOLIA Petitioner in WP(Crl) No.207/2012
ASIF BALWA Petitioner in WP(Crl) No.208/2012
KANIMOZHI KARUNANITHI Petitioner in WP(Crl) No.467/2012
SHARAD KUMAR Petitioner in WP(Crl) No.656/2012
A.RAJA Petitioner in WP(Crl) No.913/2012
ESSAR TELEHOLDINGS LTD. Petitioner in WP(Crl) No.1587/2012
ANSHUMAN S.RUIA Petitioner in WP(Crl) No.1588/2012
RAVIKANT N.RUIA Petitioner in WP(Crl) No.1589/2012
SIDDHARTHA BEHURA Petitioner in WP(Crl) No.111/2012
Through: Mr.Vijay Aggarwal, Advocate for
petitioner in Crl.MC No.4197/11,
WP(Crl.)206/12, Crl.MC
No.4199/11,WP(Crl.) Nos.129, 159,207 &
208/12
CRL.MC No. 4197/2011 & connected matters Page 1 of 10
Mr.Harsh Bora, Advocate for petitioner in
Crl.MC No.67/12
Mr.Sandeep Kapur, Mr.Shivek Trehan,
Mr.Veer Inder Sandhu, Mr.Vivek Suri &
Mr.Ankit Mishra, Advocates for petitioner in
Crl.MC No.1060/12
Mr.Abhir Datt, Advocate for petitioner in
WP(Crl.) No.467/12
Mr.Harpuneet Singh Rai, Advocate for
petitioner in WP(Crl.) No.656/12
Mr.Manu Sharma, Advocate for petitioner in
WP(Crl.) No.913/12
Mr.Mahesh Agarwal, Advocate for petitioner
in WP (Crl.) Nos.1587-89/12
versus
CBI ..... Respondent
Through: Ms. Sonia Mathur, Advocate for
R/CBI
Ms.Maneesha Dhir and Ms.Neha Singh,
Advocates for R-2 & R-3 in Crl.MC
No.4197/11
Ms.Manjusha Wadha and Ms.Punya Rekha
Angara, Advocates for R/UOI in Crl.MC
No.4199/11
Mr.Jatan Singh, CGSC and Mr.S.Qureshi,
Advocate for R/UOI in WP(Crl.) Nos.1587,
1588 & 1589/2012
Mr.Saket Singh, Mr.Kumar Rajan Mishra &
Ms.Sangeeta Singh, Advocates for TRAI in
Crl.MC No.4197/11, WP(Crl.)206/12,
CRL.MC No. 4197/2011 & connected matters Page 2 of 10
WP(Crl.)159/12, WP(Crl.)913/12 & WP(Crl)
1587/12
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. By this common order, the court proposes to dispose of the present
petitions filed by the petitioners praying inter alia for quashing of the
order on charge dated 22.10.2011 and framing of charge dated
22.10.2011, passed by the learned Special Judge, CBI in case FIR No. RC
DAI 2009 A 0045 registered by the CBI. Additionally, the petitioners have
also sought quashing of the supplementary charge sheet dated 25.4.2011
submitted by the CBI in the aforesaid cases. W.P.(Crl.) Nos.1587, 1588 &
1589/2012 have been filed by the petitioners praying inter alia for
quashing of the chargesheet dated 12.12.2011 and order on charge
dated 25.5.2012 filed by the CBI in RC No.DA 2009 A 0045 and the
charges framed against them on 25.5.2012, under Section 120-B R/W
2. Learned counsel for the respondent/CBI submits that in view of the
recent decision of the Supreme Court in the case of Shahid Balwa Vs.
Union of India and others reported as 2013(11) SCALE 75, the present
petitions need not be kept pending by this court any longer. In support of
her submission, she also refers to the earlier orders dated 11.4.2011 and
9.11.2012 passed by the Supreme Court in Civil Appeal No.10600/2010,
entitled "Center for PIL & Others Vs. Union of India & Others".
3. As for the status of the case pending before the learned Special
Judge, CBI, the court is informed that the prosecution evidence has
almost concluded in all the petitions, except in cases, subject matter of
W.P.(Crl.) Nos.1587, 1588 & 1589/2012 where the testimony of some of
the IOs are to be recorded and the cases are proceeding before the trial
court on a day to day basis for recording the testimony of the remaining
witnesses.
4. Mr. H.S. Rai and Mr. Manu Sharma, learned counsels for the
petitioners in WP(C) Nos.656/2012 & 913/2012 respectively submit that
the CBI had filed some applications in the Supreme Court seeking stay of
the proceedings in the present petitions and strictly speaking, the
aforesaid applications have not been disposed of by the Supreme Court
while passing the order dated 3.9.2013 and therefore, this court ought to
await a final decision of the Supreme Court on the aforesaid applications.
5. Mr.Vijay Aggarwal, learned counsel appearing for some of the
petitioners adds that as the applications filed by the CBI before the
Supreme Court praying inter alia for summoning the records of the
present petitions for perusal are pending, this court ought to await a
conclusive decision on the said applications.
6. In response, learned counsel for the respondent/CBI states that in
view of the order dated 3.9.2013 passed by the Supreme Court in a batch
of matters in the case of Shahid Balwa(supra), nothing further survives in
the applications filed by the CBI and in any event, the CBI is no longer
pressing for summoning of the records of the present petitions before the
Supreme Court.
7. The court has heard the arguments advanced by learned counsels
for the parties and has carefully considered their respective submissions.
The three orders passed by the Supreme Court (two in Civil Appeal No.
10600/2010 and one in the case of Shahid Balwa(supra), have been
referred to and relied upon by both sides to make their submission as
noted above. While passing the order dated 11.4.2011, in the
penultimate para, the Supreme Court had observed as below:
"We also make it clear that any objection about
appointment of Special Public Prosecutor or his
assistant advocates or any prayer for staying or
impeding the progress of the Trial can be made only
before this Court and no other court shall entertain the
same. The trial must proceed on a day-to-day basis.
All these directions are given by this Court in exercise of its
power under Article 136 read with Article 142 of the
Constitution and in the interest of holding a fair prosecution
of the case." (emphasis added)
8. Thereafter, an order dated 9.11.2012 was passed by the Supreme
Court on some applications filed by the CBI praying inter alia for
summoning the records of the present petitions and for staying the
proceedings in these cases. After considering the averments made in the
said applications and taking note of its earlier order dated 11.4.2011, the
Supreme Court had issued notices thereon and directed that in the
meantime, the proceedings pending before this Court in the present batch
of petitions shall remain stayed. Finally, vide judgment dated 3.9.2013
in the case of Shahid Balwa (supra), the Supreme Court had decided the
question raised by some of the petitioners herein and some others as to
whether the aforesaid orders dated 11.4.2011 and 9.11.2012 are liable to
be recalled. After considering the submissions advanced by both sides,
the following observations were made by the Supreme Court in respect of
the present petitions:-
" Para 13. We found, in spite of the order passed by this
Court on 11.04.2011 that no Court should entertain any
prayer for staying or impeding the progress of the trial, large
number of writ petitions were seen filed before the Delhi High
Court praying for stay of the trial proceedings on one or the
other ground. The CBI noticing that entertaining of those
cases would violate the order passed by this Court on
11.04.2011, filed an application before this Court for
summoning the records of Writ Petition (Criminal) No. 1587 of
2012, Writ Petition (Criminal) No. 1588 of 2012, Writ Petition
(Criminal) No. 913 of 2012, Writ Petition (Criminal) No. 111
of 2012, Writ Petition (Criminal) No. 207 of 2012, Writ
Petition (Criminal) No. 1478 of 2012, Writ Petition (Criminal)
No. 1751 of 2012, Writ Petition (Criminal) No. 1752 of 2012,
Writ Petition (Criminal) No. 1754 of 2012, Writ Petition
(Criminal) No. 206 of 2012, Writ Petition (Criminal) No. 159
of 2012, Writ Petition (Criminal) No. 208 of 2012, Criminal
M.C. No. 4197 of 2011, Criminal M.C. No. 67 of 2012, Writ
Petition (Criminal) No. 129 of 2012, Writ Petition (Criminal)
No. 656 of 2012, Criminal M.C. No. 4199 of 2011, Writ
Petition (Criminal) No. 467 of 2012 and Criminal M.C. No.
1060 of 2012 pending before the Delhi High Court and also
prayed for stay of all the proceedings of these cases.
14. This Court felt entertaining those cases by the Delhi
High Court, at this stage, would violate the order
passed by this Court on 11.4.2011, passed an order on
09.11.2012 staying those proceedings pending before
the Delhi High Court.
xxxx xxxx xxxx
28. We also, therefore, find no basis in the contention
of the Petitioners that the orders dated 11.4.2011 and
9.11.2012 have the effect of monitoring the trial
proceedings. No Court, other than the Court seized with
the trial, has the power to monitor the proceedings
pending before it. Order dated 11.4.2011 only
facilitates the progress of the trial by ordering that the
trial must proceed on a day-to-day basis. Large backlog
of cases in the Courts is often an incentive to the litigants to
misuse of Court's system by indulging in unnecessary and
fraudulent litigation, thereby delaying the entire trial process.
Criminal justice system's procedure guarantees and
elaborateness sometimes give, create openings for abusive,
dilatory tactics and confer unfair advantage on better heeled
litigants to cause delay to their advantage. Longer the trial,
witnesses will be unavailable, memories will fade and
evidence will be stale. Taking into consideration all those
aspects, this Court felt that it is in the larger public interest
that the trial of 2G Scam be not hampered. Further, when
larger public interest is involved, it is the bounden duty of all,
including the accused persons, who are presumed to be
innocent, until proven guilty, to co-operate with the progress
of the trial. Early disposal of the trial is also to their
advantage, so that their innocence could be proved, rather
than remain enmeshed in criminal trial for years and unable
to get on with their lives and business.
29. We fail to see how the principle laid down by this Court in
A.R. Antulay's case (supra) would apply to the facts of these
cases. We have found no error in the orders passed by
this Court on 11.04.2011 or on 09.04.2012. Therefore,
the question of rectifying any error does not arise. On
the other hand, as we have already indicated, the
purpose and object of passing those orders was for a
larger public interest and for speedy trial, that too on
day-to-day basis which has been reflected not only in
the various provisions of the PC Act, 1988 but also falls
within the realm of judicial accountability.
xxx
31. We, therefore, find no good reason either to frame
guidelines to be followed by a constitutional court in relation
to monitoring of criminal investigation or any legal infirmity in
the orders passed by this Court on 11.04.2011 or
09.04.2012. Writ Petitions lack merits and they are
accordingly dismissed, so also IA Nos. 59, 61, 63 and 68 in
Civil Appeal No. 10660 of 2010."
9. In view of the express observations made by the Supreme Court in
its order dated 11.4.2011 that any prayer for staying or impeding the
progress of the trial before the Special Judge, CBI, ought to be made only
before it and no other court shall entertain the same and the said trial
must proceed on a day-to-day basis, and further, having regard to the
categorical observation made in the judgment dated 3.9.2013 holding
inter alia that there was no basis for seeking modification and/or recalling
of the earlier orders dated 11.4.2011 and 9.11.2012, this court declines
to keep the present petitions pending to await any further orders from the
Supreme Court as has been suggested by the counsels for the petitioners
merely on the technical ground that the applications of the
respondent/CBI have not been disposed of. Instead, it is deemed
appropriate to dispose of the present petitions. If the petitioners propose
to assail the order on charge or the charge sheet as has been done in the
present petitions, it is for them to approach the Supreme Court for
appropriate relief.
10. As regards the submission made by the learned counsels for the
petitioners that the respondent/CBI has itself sought summoning of the
records of the present petitions before the Supreme Court, learned
counsel for the CBI has clarified that in view of the judgment of the
Supreme Court in Shahid Balwa's case , the stand of the CBI has been
vindicated and the earlier orders dated 11.4.2011 and 9.11.2012 passed
by the Supreme Court in Civil Appeal No.10660/2010 have been
maintained. When as per the CBI itself, nothing further survives for
consideration of the Supreme Court in the applications filed by them,
there is no justification for this Court to keep the present petitions
pending to await disposal of the said applications. Coming to the last
submission made by the counsels for the petitioners that as pleadings
having been completed in the present petitions, it would save valuable
time if these petitions are forwarded by this court to the Supreme Court
for consideration, such a request is turned down. It is not for this court to
take upon itself the task of directing the Registry to forward the files of
the present petitions to the Supreme Court without any directions
received on these lines from the said court. If the petitioners seek
transfer of the files of these cases to the Supreme Court, they are always
at liberty to make such a request before the said Court.
11. The petitions are disposed of.
HIMA KOHLI, J
OCTOBER 09, 2013
mk/rkb
