Shahid Balwa v. Tndi

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 A0045 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 A0045 and the charges framed against them on 25.5.2012, under Section 120-B R/W 420 IRC in C.C. No.IB of 2011.

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. Tndi. and others reported as 2013(11) SCALE 75, the present petitions need not be i<ept pending by this court any longer. In support of her submission, she also refers to the earlier orders dated 11.4.2011 and CRL.MC No. 4197/2011 &connected matters ''^9® ^ 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 m.l'.(Crl.) Nos.1587, 1588 8. 1589/2012 where the testimony of some of g the ICS are to be recorded and the cases are proceeding before the trial court on aday 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 8. 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 ahnai decision of the Supreme Court on the aforesaid applications. E IMr.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. PrtoB 4 of 10 CRL.MC No. 4197/2011 &connected matters

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 abatch of matters in the case of _Shahid Baiwa(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 Balwafsupra), 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 aDDOintment of Special Public Prosecutor or his assistant advocates or any prayer \ imoeding the progress of the Trial can be made only before this Court and no other court shall entertam the same. The trial must proceed on a day-to-day basis. All these directions are given ''V 'his 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 aha for CRL.MC No. 4197/2011 &connected matters P^ge 5of10 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 ShmdJ^Jaa-lSUBO)' 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:- „ p 13, We found, in spite of the order passed by this r- H- nn 11 04 2011 that no Court should entertain any Se:o;::rrpitLr:er^^^ E ^g=.Thfc^Bfn'Stic^:'^-=11.7.V r042-0^^ rran'"appli2tion^==blt:\r C^^ for qummoninq'the records of Writ Petition (Crinninai) No. 1587 of 2012 Writ Petition (Crinninai) No. 1588 of 2012, (Criminal) No. 913 of 2012, Writ Petition (Criminal) No..11 of 2012 Vv'rit Petition (Criminal) No. 207 of 2012,. Petition (Criminal) No. 1478 f ~ No 1751 of 2012, Writ Petition (Criminal) No. 1752 ot writ Petition (Criminal) No. 1754 of 2012, Writ Petition (Criminal) No. 206 of 2012, Writ Petition (Criminal) No. 1j[9] of 2012, Writ Petition (Criminal) No. 208 of 2012, Criminal Mr 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 CRL.MC No. 4197/2011 &connected matters P^ae 6of10 Petition (Criminal) No. 467 of 2012 and Criminal M.C. No^ 1060 of 2012 pending before the Delhi High Court and a 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 I'®®'® of the Petitioners that the orders dated and 9 a 201'' have the effect of monitoring the trial proceedings. No Court, other than the Court seized w,th t'hrtHal, 'has the power to monitor the Proce^dmg^ pending before it. Order dated facilitates the progress of the trial by ordering th^at the tria! must proceed on aday-to-day basis. Large backlog of cases in the Courts is often an incentive to the^ litigan.s l misuse of Court's system by indulging in unnecessary. fraudulent litigation, thereby delaying the entire tnal process^ rriminal justice system's procedure guarantee, and Elaborateness sometimes give, create for abusive dilatorv tactics and confer unfair advantage on better hee e gan[4] toT^^se delay to the.r advantage. Longer t etna Witnesses will be unavailable, memories will fade and evidence will be stale. Taking into consideration all those 'isoects this Court felt that it is in the larger public interest tha^ the trial of 2G Scam be not hampered. Further, when larger'public interest is involved, it is the bounden duty of all induding the accused persons, who are ^ 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, rathei 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. R Ar,tulav's case Isugai would apply to the facts of these cases. We have found no error in the orders passed by Paos 7 of 10 CRL.MC No. 4197/2011 &connected matters this Court on 11.04.2011 or on ' the question of rectifying any error does "ot "'S®' the other hand, as we have already indicated, the purpose and object of passing those "'".''f® ® ® 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 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 lA Nos. 59, 61, an Civil Appeal No. 10650 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 ofthe 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 aday-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 furt:her 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 CRL.MC No. 4197/2011 &connected matters 8of10 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 ShahW^alvmlt.^.the stand of the CBI has been Vindicated and the eariier 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 Justiflcation 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 fonvarded by this court to the Supreme Court for consideration, such arequest 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 CRL.MC No. 4197/2011 &connected matters ® 9of10 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.

OCTOBER 09, 2013 mk/rkb CRL.MC No. 4197/2011 & connected matters HIMA KOHLI, J