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2G: Balwa seeks guidelines on monitoring trial(Lead)

New Delhi,Business/Economy,Immigration/Law/Rights, Mon, 10 Dec 2012 IANS

New Delhi, Dec 10 (IANS) Shahid Balwa, Swan Telecom's former director and an accused in the 2G spectrum case, moved the Supreme Court Monday seeking the framing of guidelines to be followed by constitution courts in relation to monitoring criminal probes.

Swan Telecom is now known as Etisalat DB Telecom Pvt. Ltd.

Balwa's plea was mentioned before the apex court bench of Chief Justice Altamas Kabir, Justice S.S. Nijjar and Justice J. Chelameswar by senior counsel Ram Jethamalani and Rajiv Dhawan.

The court without passing any order said that it would look into the file.

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.

He also sought a declaration that after the filing of the charge sheet and framing of the charges and commencement of the trial, no monitoring of the investigation and/or the trial was necessary in view of the law laid down by the apex court.

The petition said the apex court in several cases held that "upon filing of the charge sheet, 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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