"Unfortunately, the trial court has not realised the spirit of the order and took it in a literal sense making it an instrument of torture," senior advocate Ram Jethmalani, appearing for Swan Telecom promoter Shahid Balwa, submitted before a bench of justices G S Singhvi and K S Radhakrishnan.
Mittal and Ruia, who have been summoned as accused in the case of alleged irregularities in allotment of additional spectrum, assailed the order saying it has seriously impaired their right to approach the High Court. However, the CBI opposed the plea for recall of the apex court's April 11, 2011 and November 9, 2012 orders, saying these were passed "keeping in mind the magnitude of the case involving the sitting MP, who was then the telecom minister (A Raja) and large number of industrialists".
Also read: Sunil Bharti Mittal's remuneration down 10% to Rs 22.55 cr
The agency told a bench comprising justices G S Singhvi and K S Radhakrishnan that "the entirity of 2G spectrum scam spread for long period and there are connected cases" and "in case of Mittal and Ruia the trial court asked them to be added as accused (in the additional spectrum case) and they themselves have come to this court".
Senior advocate Harish Salve, appearing for Mittal and Ruia, said the apex court orders on their pleas were being given altogether a different interpretation by the CBI. "It is surprising how your orders are being understood," he said referring to the orders in which the CBI and others were given six weeks to complete the filing of affidavits and counter-affidavits on their petitions challenging the trial court order summoning them as accused in the case of alleged irregularities in the additional spectrum case.
Salve said the prosecution interpreted the orders as if there was stay on proceedings against them only till six weeks and the trial court asked Mittal and Ruia to get clarification from the apex court.
He said "nobody knows what twist and turn this trial in the 2G case will take as now the trial court has called new witnesses". He was referring to the trial court's July 19 order allowing CBI to call 13 additional witnesses including Reliance ADAG Chairman Anil Ambani and his wife Tina Ambani.
"In a situation like this that no court other than this court will hear the matter is a serious impairment of right of accused," he said and added that "your lordship has the power to change and correct that order because of serious issues arising during the trial".
He said the 2G case was a complex matter and more and more dimensions are being added to it so the accused should be allowed to approach the High Court.
Salve said when the April 11, 2011 order was passed the concern of the court was not to derail the probe and it was never to curtail the right of accused.
Earlier, Jethmalani concluded the arguments, saying that the order barring any other court from hearing the 2G case has "unwittingly repealed" all the rights and remedies of the accused which was passed without hearing them.
He said the proceeding in the case was not in accordance with section 309 of the Code of Criminal Procedure as the trial court gave literal interpretation to the order for day-to-day trial and was denying reasonable adjournments.
"I have no difficulty in telling you that the trial is totally void," Jethmalani said adding that "the order of April 11, 20011 was passed in our absence and it would be very harmful for us".
Earlier, Reliance Telecom Ltd, also an accused in 2G spectrum case, had said the order has infringed upon the fundamental rights of a person for equal protection before the law.
It had said the order was passed by the apex court in its anxiety to fast track justice but it has taken away the rights of the accused granted under Article 14 and 21 for fair trial and violates the rights held under the basic structure of the constitution.
RTL had said the right under Article 226 of the constitution to move the High Court cannot be taken away as there has been an apex court judgement holding that Article 226 is a part of basic structure of the constitution.
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