Directive staying proceedings in High Court violated Articles 14 and 21, says accused Shahid Balwa

The Supreme Court decided on Monday to examine the legality of the November 9 order of a Bench that stayed all further proceedings in the 2G case in the Delhi High Court in respect of the petitions the accused had filed to quash the charges framed against them, virtually taking away their rights under Section 482 of the Cr.PC.

The Bench of Chief Justice Altamas Kabir and Justices S.S. Nijjar and J. Chelameswar decided to hear a petition filed by Shahid Balwa, one of the accused, who was aggrieved by the order Justices G.S. Singhvi and K.S. Radhakrishnan passed on the CBI’s applications for a stay on the proceedings.

Senior counsel Ram Jethmalani, appearing for Balwa, made a mention of the filing of the petition, and the Bench agreed to list the matter for hearing.

Balwa sought a declaration that the orders passed by the ‘2G Bench’ (one on April 11, 2011 that no court in the country entertain any petition relating to the case and the other on November 9 when the proceedings in the Delhi High Court were stayed) were “void for being unconstitutional and a legal nullity” as they violated Articles 14 and 21 of the Constitution and provisions of the Cr.PC.

The orders, he said, were bad in law as they were passed without the petitioner, not being a party, getting a chance of hearing, and “in complete derogation of the basic structure of the Constitution.” Balwa said the petition raised important questions of law: “Whether, in the process of monitoring of criminal matters under Article 142 of the Constitution, the constitutional remedy under Article 226/227 available to the citizen — which forms part of the basic structure of the Constitution — can be taken away from a citizen by the Supreme Court; whether the court, in exercise of its power under Article 142, can compel a citizen to approach it [directly] under Article 32; whether the right of a citizen to invoke the inherent powers of a High Court under Section 482 of the Code of Criminal Procedure can be taken away; whether this court pass an order directly, affecting the rights of a citizen, without affording him a hearing. Balwa said it was a “well-settled” law that on the filing of charge sheet, court monitoring would end, and the trial or any other proceedings thereafter were to follow the legal course as per the relevant statutory provisions. “Merely because this court has monitored the investigation does not mean that all remedies available to the accused as well as the prosecution in accordance with the law has been subverted.” Pointing out the flaws in the 2G case, Balwa said: “… various interlocutory applications unconnected with the original prayers contained in the original writ petition have been filed, entertained, considered and decided” without the parties — affected or likely to be affected thereby — having been heard. This resulted in grave injustice and prejudice to the parties concerned /the accused, including the petitioner.

“It is well settled that no court, including the Supreme Court, can issue directions or orders to the executive authority or to the subordinate judiciary…,” which would run counter to the basic structure of the Constitution or any statute. “Despite the widest amplitude of jurisdiction of this court under Article 142 of the Constitution, the directions cannot be contrary to the mandate of law.” Hence, he sought a direction for framing guidelines for monitoring of criminal matters by constitutional courts and for setting aside the orders dated April 11, 2011 and November 9, 2012.

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