Dec 13 2012, 8:56am CST | by Luigi Lugmayr
New Delhi, Dec 13 — The Supreme Court Thursday said that its special bench dealing with the 2G specturm case would hear the plea of four 2G scam accused for quashing two apex court orders and for framing guidelines to determine the scope of monitoring of investigations by constitutional courts.
A bench of Chief Justice Altamas Kabir, Justice S.S. Nijjar and Justice J. Chelameswar directed the matter be listed before the special bench as senior counsel K.K.Venugopal, appearing for the Central Bureau of Investigation, resisted the plea.
Besides seeking that monitoring guidelines be framed, Shahid Balwa, Vinod Goenka, Rajiv Aggarwal and Asif Balwa have sought the quashing of April 11, 2011, and Nov 9, 2012, orders of the special bench comprising Justice G.S.Singhvi and Justice K.S.Radhakrishnan.
The April 11 order made it clear that "any prayer for staying or impeding progress of the trial (in 2G scam) can be made only before this Court and no other Court shall entertain the same. Trial must proceed on a day to day basis".
By the Nov 9 order, the special bench had suspended all further proceedings before the Delhi High court in the cases arising out of 2G trial before the court of Special CBI Judge Om Prakash Saini.
Venugopal challenged the maintainability of the petition by Shahid Balwa and others, and contended that it could only be heard by the special bench that had passed the orders now challenged.
Citing a 2002 judgment of the apex court, he said the bench headed by Chief Justice Kabir does not have the jurisdiction to quash the order passed by the other bench.
"If this happens, then each bench will get to review the orders passed by another bench, resulting in chaos," he told the court.
No sooner had senior counsel Ram Jethmalani, appearing from Balwa, started his arguments, the court asked him how the plea seeking the quashing of the two orders could invoke the powers of the apex court under Article 32 of the Constitution.
The powers under Article 32 could only be invoked for safeguarding the fundamental rights guaranteed under the constitution, it said.
"Can you under Article 32 ask this bench to review the orders of another bench?" Chief Justice Kabir asked Jethmalani.
Article 32 spells the remedies for enforcement of fundamental rights conferred by Part III of the constitution and provides for the "right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed".
Jethmalani responded by saying that "if an order is passed without hearing the affected parties, then that order is liable to be quashed. That is the principle of law that this (apex court) has laid in several cases".
Referring to the apex court constitution bench's judgment in the case of former Maharashtra chief minister A.R. Antulay, Jethmalani said there could be no discrimination in the application of code of criminal procedure for different sets of people.
Assailing the orders, Jethmalani said that "in two lines, the (apex) court has repealed the Code of Criminal Procedure and Article 226 (which spells out the powers of the High Courts to issue certain writs)".
"My right under the Cr.P.C. and Article 226 has been treated differently from others," Jethmalani argued.
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